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Beshear signals potential support for a bill amending Kentucky Open Records Act

The Capitol building in Frankfort Kentucky
Ryan Van Velzer
The Capitol building in Frankfort, Kentucky, on Friday, April 5, 2024.

A GOP-backed bill that advocates say could “destroy” Kentucky’s Open Records Act has so far failed to pass the legislature. Kentucky’s Democratic governor expressed support for elements of the bill, which he said he believes would increase transparency.

The GOP-controlled legislature still has time to pass a bill that would prevent the public disclosure of officials’ text messages and private emails.

Democratic Gov. Andy Beshear could choose to veto the bill and because of the last minute timing, Republicans wouldn’t be able to override his veto. But on Thursday, Beshear signaled support for parts of the measure that opponents say could destroy transparency in Kentucky.

Although he refused to say whether he’d sign the bill if it came to his desk, Beshear said he believes the bill would allow the government to pull records that otherwise “will never come to light.”

The bill would require public agencies 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. The Senate has not yet chosen to take the bill up.

Beshear said Thursday he felt it would negate the need to request records from private devices or accounts. He said the current law gives too much power to potential bad actors, who may not hand over all of the appropriate records from private devices.

“What it does is take whether you get a record away from a potential bad actor and put it with the agency that can secure those records,” Beshear said.

However, the bill doesn’t fully require that officials use only their public email accounts for public business. The current version of the bill says, “an employee of a public agency shall not use an email account other than” their official email address “to conduct the business of the public agency.” That could feasibly allow the continued use of private devices or messaging apps for state business while not requiring agencies to produce records from those devices.

This provision has been criticized as creating a loophole for public officials to skirt the state’s open records law by using texts and apps on their personal phones to conduct public business.

Michael Abate, a Kentucky Press Association lawyer who also represents Louisville Public Media and other outlets on First Amendment issues, said at a committee hearing on the bill that the change to state law would not enhance transparency and would remove access to records.

“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.”

HB 509 would also allow a public agency to identify people whose “job functions and responsibilities are not compatible with, or do not require, the use” of an official email account. The bill puts no limitations on who those people are or how many an agency could identify.

Beshear said he believes in transparency, pointing to the fact that he regularly makes his tax returns public. He also said that in his time as attorney general, he became very familiar with the state’s open record laws.

“I get that other people that I've agreed with in the past view this bill in one way,” Beshear said. “I view this part of it as us being able to secure more records when an open records request is made.”

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

Sylvia is the Capitol reporter for Kentucky Public Radio, a collaboration including Louisville Public Media, WEKU-Lexington, WKU Public Radio and WKMS-Murray. Email her at sgoodman@lpm.org.
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