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Bill that ‘destroys’ transparency of Ky. public records drops one provision as it advances

FRANKFORT, Aug 3 2023 – Rep. John Hodgson, R-Fisherville, presents a potential bill on electronic privacy protection during the August Interim Joint Committee on Judiciary meeting.
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GOP Rep. John Hodgson from Fisherville presents a potential bill on electronic privacy protection during the August Interim Joint Committee on Judiciary meeting on Aug. 3, 2023.

Legislation to amend the Kentucky Open Records Act cleared a Senate committee despite bipartisan criticism that it would undermine government transparency, though a controversial part of the bill was rejected.

A bill that government transparency advocates say would dramatically undermine the state’s open records law cleared a Senate committee Wednesday, but not until it dropped an added provision that drew even stronger criticism.

House Bill 509 requires public agencies to create official email accounts for employees to conduct public business with, while also preventing public disclosure of information from those officials’ private phones and email accounts. It cleared the House in early March with all but a dozen Republicans supporting the bill.

This provision had already been criticized as creating a large loophole for public officials to skirt the Kentucky Open Records Act by hiding their use of private texts and apps on their personal phones to conduct public business — but a late committee substitute for HB 509 would have gone even further.

A new version of HB 509 was sent to committee members Tuesday night and was not yet posted online when it was taken up by the committee Wednesday. This version would have removed “every state or local government officer” from the definition of public agencies subject to the state’s open records law.

GOP Rep. John Hodgson of Louisville told the committee this would not actually exempt such officials from having to produce public records, but that interpretation was rejected by Michael Abate, an attorney for the Kentucky Press Association who also represents Louisville Public Media and other outlets on First Amendment issues.

Abate said this change to state law would completely exempt the governor, other constitutional officers and every elected mayor, city council member or school board member from the Kentucky Open Records Act.

“This law doesn't enhance transparency,” Abate said. “It destroys it in a very un-American way, where the citizens of Kentucky will no longer have access to records they've had for 40 years.”

After the testimony of Abate and other critics, the committee members made motions to withdraw the committee substitute and instead take up the version of the bill passed by the House — though this also received bipartisan criticism.

Hodgson argued his bill’s provisions to protect the private phones and email of public officials from inspection and mandate the use of public email addresses is “a necessary step for us to modernize our open records statute in Kentucky and maintain that balance between the public's right to know an individual's right to privacy.”

Abate renewed his criticism of the bill that he had leveled in the House, saying it would actually incentivize public officials to hide their communications about public business by using their private devices and apps.

“There is nothing in this bill that says don't text or Signal or anything else,” Abate said. “And the bill expressly exempts agencies from searching for something sent other than by email.”

Abate specifically cited an audit released this week on Jefferson County Public Schools’ transportation debacle at the beginning of the school last year, which found employees were encouraged to use text instead of emails because they're less susceptible to open records law — an action that is “going to be the norm” if HB 509 passes.

“I think creating a loophole that encourages everybody to text or Signal or direct message is profoundly destructive to government transparency,” he said.

Liam Gallagher, the legislative director for the Kentucky chapter of Americans for Prosperity, joined in to criticize this provision of the bill. Noting that his organization is a conservative advocacy group, he added: “the fact that we are here with the Kentucky Press Association should raise alarm bells.”

Gallagher called HB 509 “a specious attempt” to strengthen the state’s open records law, as it would actually “lead to less transparency and possibly open the door to evasion of records management and records disclosure obligations.”

While some senators expressed concerns, Sen. Gex Williams of Verona was the only Republican to vote against the bill, adding the same criticism of the texting loophole. He urged legislators to reexamine the issue after the session to find a way to address protecting the privacy rights of public officials, while still balancing “the compelling need for the public to be able to access records.”

The bill advanced out of committee with six votes, the minimum number it needed to pass.

While Hodgson said his bill was needed in order to prevent public agencies from seizing the private phones of employees in order to comply with open records requests, he later said he had no examples of this ever happening.

Abate said this is “a completely false concern,” as public officials in some cases have only been asked to copy and forward private emails and texts that are relevant to public business or records that are the subject of an open records request.

“This is a made up concern being used to hollow out transparency,” Abate said. “The law as it exists protects privacy well enough, this will just create a loophole that people can walk right through to avoid transparency.”

House Bill 509 could be passed by the Senate as early as Wednesday evening and sent to the governor for his signature or veto.

A spokesperson for Gov. Andy Beshear did not immediately reply to an email asking if the governor is in favor of the current version of the bill. Beshear has previously sidestepped questions about HB 509, with Republican co-sponsors claiming that he supports the legislation.

State government and politics reporting is supported in part by the Corporation for Public Broadcasting.

Joe is the enterprise statehouse reporter for Kentucky Public Radio, a collaboration including Louisville Public Media, WEKU-Richmond, WKU Public Radio and WKMS-Murray. Email Joe at jsonka@lpm.org.
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