Every year in Frankfort, there is a recurring tradition of introducing a new bill aimed at undermining the transparency that Kentucky citizens have long enjoyed under the Open Records Act for almost half a century. However, this year’s bill, HB 509, endorsed by Speaker David Osborne and other leaders in the House, takes a different approach. It seeks to completely eliminate the public’s right to access even the most fundamental information about the government’s activities carried out on their behalf.
To achieve this objective, the main approach would involve redefining the concept of a “public record.” Currently, the definition is straightforward: it includes any record that is created, owned, used, possessed, or retained by a public agency, regardless of its format (whether paper or electronic), content, or storage location. Although agencies may argue that certain records are exempt from disclosure under other provisions of the law, they still need to acknowledge the existence of these records, conduct a search, and provide a rationale for why they should not be released.
Under the new law, however, things are different. Lawmakers are suggesting the inclusion of certain restrictions and exemptions in the definition of a “public record,” which can potentially lead to deceitful practices by public agencies. According to HB 509, a document would only be considered a “public record” if it pertains to a “transaction” or “final action” of a public agency. These terms lack clear definitions in the law, leaving room for potential misuse and manipulation.
Ever wondered why you can’t find out the reasons behind a teacher or coach getting fired (or not)? Well, it’s because the allegations in the investigative file are not considered as the “final action” and thus, you’re not allowed to see them. Similarly, if you’re curious about what’s in a police officer’s personnel file, like what Louisville knew about its police chief’s disciplinary issues before hiring her, you’re out of luck because those records are also not considered as “final actions.” And don’t even think about getting a copy of body camera footage or accessing emails between elected school board members discussing district policies or incidents. All of that is off-limits now. Remember those Pulitzer Prize-winning stories about Governor Bevin’s controversial pardons, which led to the federal government re-prosecuting some offenders? Well, those stories wouldn’t exist anymore because the Governor could argue that the recommendations were not the “final actions.”
However, even if you manage to overcome this new obstacle, there are additional challenges ahead. For instance, documents labeled as “preliminary” will no longer be considered public records. Presently, these records can be withheld temporarily, but once a final decision is made, the rationale behind it must be disclosed. That won’t be the case under HB 509. The records that shed light on the reasons behind your government’s actions will be permanently inaccessible.
Furthermore, the bill aims to exclude any activities carried out on a “personal” device or email account from being subject to public scrutiny, even if they pertain to public affairs. Previously, Senator Damon Thayer attempted to introduce this exemption, but due to public backlash, the General Assembly had to abandon the idea and instead implement a more limited exemption for “communications of a purely personal nature unrelated to any governmental function.” However, they are now revisiting this issue and seeking to exempt all content on cell phones or Gmail accounts, regardless of its nature. The recent ruling by the Court of Appeals serves as a reminder of the potential risks associated with such an approach. The court emphasized that completely excluding all text messages on personal cell phones from the scope of the Open Records Act would undoubtedly encourage the use of personal electronic devices and make crucial public records inaccessible to citizens.
The creation of public policy is a matter that concerns the public. It is crucial for citizens from all political affiliations to come together and strongly oppose HB 509, as it aims to drastically undermine the Open Records Act. If this bill is passed, the public will be deprived of their right to access information regarding the activities of public officials and employees, which are funded by taxpayer dollars.
Jon Fleischaker and Michael Abate, who are media law and First Amendment experts, hold the position of General Counsel for the Kentucky Press Association. They are practicing attorneys at Kaplan Johnson Abate & Bird LLP and are extensively involved in litigation related to Open Records and First Amendment disputes throughout Kentucky. Notably, Fleischaker played a significant role in crafting the state’s Open Records and Open Meetings Acts.
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