Experts caution that under House Bill 509, the light may go out on numerous public records in Kentucky. Above, January 4, 2023, at dusk, the Kentucky Capitol.
FRANCKFORT: News outlets and supporters of open records are criticizing a recently filed law in Kentucky that one expert claimed “would eviscerate access to public records,” despite the measure’s author refuting these allegations as exaggerated.
Rep. John Hodgson, R-Fisherville, stated via email that “the public’s access to disclosable public records will not be hindered in the least.” “Any record that can be disclosed now can still be disclosed.”
Representative Jason Nemes of Middletown and House Speaker David Osborne of Prospect, both Republicans, co-sponsored House Bill 509, which was sharply criticized by opponents.
The Kentucky Press Association said in a statement on Wednesday that HB 509 would repeal a long-standing model legislation pertaining to public access to government records.
Anybody who respects the people’s right to know what their government is doing must oppose this law, which could only be regarded as an all-out assault on transparency.
Michael Abate
First Amendment attorney Michael Abate, who defends Kentucky news outlets and the press association, attacked HB 509 in remarks on X, the previous Twitter platform.
Residents and media in Louisville, this is not a drill. According to Abate, “House leadership supports HB 509, which would severely restrict access to public records in the Commonwealth.” “It is completely incorrect to claim that it excludes anything new.”
In an interview, Abate refuted Hodgson’s assertion that the law doesn’t alter public record access.
He declared, “It is extremely dangerous to think that it doesn’t change anything.” “That is a false assertion.
HB 509 is a significant assault on the open records law, according to an email from Amye Bensenhaver, co-director of the Kentucky Open Government Coalition.
Bensenhaver, Amye
Bensenhaver, a former assistant attorney general for Kentucky who authored decisions on open records, stated, “The annual legislative assault on Kentucky’s open government laws has commenced in earnest, but this year with a vengeance.” “To say that the Kentucky Open Records Act’s future is in jeopardy is not hyperbole.”
Bill 509 would
Expand the parameters of what the law considers to be public records while excluding certain items that critics claim should now be disclosed.
Although opponents claim that the language of HB 509 might prevent access to things like emails, police data, personnel information, and donations to public organizations like university foundations, Hodgson insists that it wouldn’t alter access to such materials.
According to Abate, “it narrowly redefines public records in a way that puts off limits the things people seek out on a daily basis.”
According to the press association, HB 509 will “replace chaos and confusion with a well-functioning system.”
mandate that the executive branch give state emails to all workers and that they only be used for official purposes. Open records requests would apply to such emails.
“This procedure should protect the employees’ private information on their devices from being made public,” stated Hodgson.
However, the press association claimed that HB 509 adds “a glaring loophole” by shielding personal electronics like email accounts and cell phones from public disclosure, even when they are used for conducting or discussing official business.
As per the press association, “it is true that board members or commissioners could blatantly violate the Open Meetings Act by conducting their substantive discussions by email or text, and reaching consensus on how to proceed, and the evidence of those violations would be completely off limits to the public because they were not done on ‘government’ devices.”
prohibit the publication of early drafts, talks, or suggestions pertaining to official acts that are now obligated to be made public after a decision is made.
For example, if a personnel case is closed, the state is now required to release all records.
That may “massively erode” the public’s access to information on things like state employee misconduct and the state’s handling of allegations, according to the press association.
The death of 9-year-old Amy Dye in 2011—who was beaten to death in her Todd County adoptive home—was used as an example. The Cabinet for Health and Family Services, which had placed her in the home, was heavily covered by the media following her death.
Before a court forced it to do so, the cabinet initially denied having any documents, then withheld all of the copious data it had in the case—including detailed accusations of abuse that it had neglected to look into or validate. Disclosures in the case helped result in a landmark open records ruling that the public has access to state records of child abuse and neglect that results in the death or serious injury of a child.
HB 509 would undermine vital access to such records created by the court decision, the press association said.
“I t is exactly what happened when the Cabinet for Health and Family Services falsely denied possessing ‘public records’ related to the tragic death of Amye Dye, a child under its supervision,” it said. Significant penalties against the agency and significant legal changes to the child welfare system resulted from the ensuing litigation, which was among Kentucky’s most significant open records cases.
Individual gadgets, public affairs
The provision regarding state emails and exempting personal electronic communications of employees drew particular concern.
Hodgson said the intent is to ensure access to public information but protect privacy of individuals.
“There has been some debate for years about whether personal devices should be exempt from (open records),” he said in an email.
Further, he said, a pending state Supreme Court case could force employees to disclose such information, saying it “may put all executive branch employees at risk for losing their personal privacy regarding text messages and emails on their personal devices.”
“As the former attorney general, the governor understands the importance of open records laws and transparency in government,” his spokeswoman, Crystal Staley, said in an email. “The proposed law requires everyone doing state business to have a state email or other means of official communication, and that they must conduct their official business using it. That is a step forward that addresses recent challenges and should be acknowledged.”
Staley did not address other provisions of HB 509.
Abate said he doesn’t dispute that state employees should have work emails to use for state business.
“That’s actually a good idea,” he said.
But the bill also provides new protections shielding government workers or officials from having to provide communications from personal emails or phones even when they involve state business—which would lead to abuse and secrecy, he said,
“It’s going to be a disaster,” he said.
