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KY lawmakers have not passed a bill to strengthen open records laws

In responses ranging from disinterested to comatose, Republican leaders showed little concern about House Bill 509’s demise.

Could it be that the sponsors were unable to generate enough enthusiasm/votes in the Senate to mention the damn thing? Or could it be that a bipartisan public expressed its opposition so fiercely that lawmakers admitted their error in judgment and withdrew?

To paraphrase Lexington Herald Leader reporter Austin Horn, “both things could be true.”

Lawmakers respond to the apathy surrounding HB 509

After the Senate adjournment, Floor Leader Damon Thayer told Lexington Herald Leader Frankfort Bureau Chief Tessa Duvall and other reporters, “There just wasn’t any energy in the (Republican) caucus to get it done.”

“Hardly anyone brought it up. I think maybe one person brought it up this weekend, but that’s it.”

And with the charm, wit and statement of the obvious that has endeared him to few – and even fewer will miss – he added: “I think this is a problem that is unlikely to go away.”

Thayer noted that he had “urged Hodgson to work with the sponsors of the various floor amendments on HB 509 to come up with a better version of the bill before the start of next year’s session in January.”

Kentucky GOPs An aggressive anti-transparency agenda is the clear impetus for HB 509

Hodgson would do better to discuss any new proposal with stakeholders and experts who know a little more about the open records law and how it actually works. He should avoid the legislative echo chamber of lawmakers who know so little or care so little about the public records law — or who feign ignorance of the law to advance specious and half-baked arguments — in favor of public records law the public records that reflect the will of the people.

Communicated in what, we imagine, was his typically dyspeptic manner, Senate President Robert Stivers “said he was personally in favor of the bill and also expected it to be up for debate in the interim.”

Someone should suggest to the President that consultation and cooperation beyond those who have shown nothing but contempt for the Kentucky Open Records Law may be appropriate in the meantime.

After all, it was Thayer who introduced an amendment in 2018 aimed at excluding documents concerning public affairs kept on private devices and cellphones from the definition of “public documents.” And it was Stivers who backed his play.

Lawmakers may not have cared. But people did.

The legislators, with few exceptions, may have been unable to generate much enthusiasm for the subject, but Kentuckians did not suffer this malaise. As Liam Gallagher, legislative director of the Kentucky advocacy group Americans for Prosperity, emphasized in testimony before the Senate Committee on State and Local Government, “The fact that we are here with the Kentucky Press Association should set off alarm bells.”

Gallagher characterized HB 509 as “a misguided attempt” to strengthen the state’s open records law, which would inevitably “lead to less transparency and potentially open the door to evasion of records management and document disclosure obligations.” Even the abbreviated version of the bill that subsequently advanced out of committee by a narrow margin – after a hastily passed committee sub-proposal “failed” in committee – demonstrates this point.

After the suspension, Senator Gex Williams, the only Republican to vote “no” on HB 509 in the committee, suggested that “major changes should be monitored over a period of time.” Moreover, he acknowledged the efforts of opponents of the bill to ensure its defeat. “Public scrutiny of the bill had a ‘major’ influence on its demise,” he told reporters.

The sponsor of HB 509, Rep. Hodgson, complained that “we did not proactively address the electronic communications issue this session.”

Gert: Entucky’s Republican Senate has done something good. Now Stivers wants to ruin it

“The need for this legislation is likely to become clearer in the coming year,” he said. “We must clearly define the balance between public disclosure and personal privacy.”

A dangerous new world or restoration of the legal status quo?

Hodgson’s observations are interesting given that the courts have thus far done nothing more than restore the status quo in open records analysis, after Attorney General Daniel Cameron went completely off the rails in a 2021 open records decision. It was Cameron who rejected almost five decades of interpretation by arguing that it is the nature and purpose of the document, rather than the place where it is kept, that determines its status as a public document subject to the law on open documents. But for a radical reinterpretation of the open records law by Cameron – and most recently by his successor – the legal landscape would remain unchanged.

The list of goods sold to or being sold by Rep. Hodgson and supporters of this law took Kentucky to a new level of madness, with officials allegedly jealously guarding their personal cell phones and job seekers allegedly fleeing the jurisdiction. Kentucky entered this bizarre world of open records analysis, based on claims of a heretofore unimaginable tension between the public’s right to know and personal privacy rights. The release of the Court of Appeals’ opinion in Kentucky Open Government Coalition v. Kentucky Department of Fish and Wildlife Resources Commission last fall should have eliminated these claims but instead sent the bill’s proponents into a frenzy. I guess they didn’t read the obvious similarity.

The rarest of things: political common ground

The battle ahead is one aimed at convincing lawmakers that their “facts” are fiction. Lawmakers should also be reminded that at this moment of political polarization, they were flying too close to the sun, “and stumbled upon a rare piece of common ground: distrust of the motives of government officials and resistance to a plan that would allow them to maintain activities. with less control.”

Coordination of efforts to prevent the almost certain return of a variant of HB 509 should begin almost immediately. Our lodestar should be “Avoiding public scrutiny is neither bold nor conservative; it is weak and reactionary.”

However nefarious the backroom horse-trading that led to the decision not to call HB 509 may have been, we who fought against it have the right to relish the victory – even the appearance of victory – of the people of Kentucky on legally sanctioned government secrets.

“People power was on display. People from all walks of life – left, right, Democrat, Republican, poor, rich, across the spectrum – came together to talk about the importance of our right to know.”

Amye Bensenhaver is a retired assistant attorney general who spent 25 years in that office writing open papers and public meeting decisions. She is co-founder and co-director of the Kentucky Open Government Coalition, along with Jennifer P. Brown, former editor of the Kentucky New Era and current Hoptown Chronicle editor.