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Amye Bensenhaver: A disconcerting look at open government on the 50th anniversary of Watergate

As the nation reflects on the fiftieth anniversary of Watergate, Kentuckians should pause to consider one of its least heralded but most enduring legacies: the Commonwealth’s open government laws.

In January 2022, retired Henderson Gleaner reporter, Frank Boyett, described the local political backdrop against which the first glimmer of a statewide public access law emerged.

Noting that the Freedom of Information Act — which is applicable to federal agencies — “took effect July 4, 1967, after more than a dozen years of effort, Kentucky’s statutes guaranteeing public access to official meetings and public records didn’t come along until the mid-1970s,” Boyett wrote:

Amye Bensenhaver

“On Jan. 8, 1972, the lead story on the front page of The Gleaner was about a bill that had been filed in Frankfort to guarantee greater governmental openness.

“It didn’t pass in the 1972 session, but a watered-down version passed in the 1974 General Assembly. It is still with us and is known as the Open Meetings Act.

“The 1972 bill was sponsored by Rep. Terry McBrayer, D-Greenup. It covered virtually every public agency in the state and levied much stiffer penalties for noncompliance than the current law has.

“For instance, the current law says any meeting containing a quorum would be subject to the act. McBrayer had a lower bar: two members or more.

“And the penalties had some teeth. ‘Members attending meetings in violation of the bill could be fined up to $500 or be imprisoned for six months – or both,’ the editorial of Jan. 9 pointed out.

“‘Officials who believe they can do their best work for the people without the scrutiny of public and press might adjust their way of thinking if closed meetings could lead to prison terms.’

“Kentucky’s Open Meetings Act of 1974 was followed in 1976 with the Kentucky Open Records Act.”

A January 1976 story by Courier Journal staff writer James R. Russell picks up the historical thread.

Russell wrote:

“The open records proposal, described by some as the ‘fresh air’ bill, is something of a companion to the open meetings (‘sunshine’) law passed in the 1974 General Assembly. An open records bill was also passed during the 1974 session, but was vetoed by then Governor Wendell Ford.”

Russell explains that Ford vetoed the open records bill in 1974 “because he felt some records needed protection,” including — in what would become a recurring theme — student education records and records relating to economic development.

One of the sponsors of the 1976 open records bill, Representative Joe Clarke D-Danville observed at the time:

“The bill has grown out of the frustration that citizens feel when — after participating in the process of electing a representative government — elected officials act as if the government belongs to them rather than the people.”

History recounts that the impetus for these laws — and many like them in states across the country — was the secrecy associated with the United States’ military operations in Viet Nam and the coverup associated with the greatest assault on democracy to that date: Watergate and interlocking political scandals that occurred during the Nixon administration.

Nearly 50 years later, we face the question whether future Kentuckians will look back on this as the period in which the Commonwealth’s open government laws were successfully dismantled by attacks emanating from an openly hostile legislature and an equally hostile, but slightly more furtive, attorney general.

Daniel Cameron’s assault on foundational principles that inform Kentucky’s open records and open meetings dishonor him and the office he holds.

Some may one day wax nostalgic about the laws’ “good run.” Others may struggle to understand the failure of elected officials to preserve the laws in deference to the broad public support they enjoyed.

But make no mistake. The laws may collapse under increasing attacks by “[p]oliticians who lack the maturity or the backbone to deal with criticism or opposing viewpoints” and who are intent on “rig[ging] the game in order to make their jobs more comfortable.”

The “right leaning” Bowling Green Daily News said it best in a January 2022 editorial that no doubt caused the legislative super majority and the sitting attorney general considerable discomfort.

The Daily News opined:

“With increasing exasperation, we write yet again to decry the seemingly endless pursuit of Kentucky Republicans to mock the concept of public transparency, to weaken the press, and to generally disregard basic freedoms afforded by the First Amendment.

“For decades, Kentucky’s Open Records Act has been hailed as a standard bearer for accountability laws. But in recent legislative sessions – including the current one – the state GOP has repeatedly spearheaded troubling attempts to diminish the law by seeking to erect barriers between the public and information it has a right to know. Not only that, we’ve seen Republicans take dead aim at newspapers’ financial health by stripping legal advertisements from many publications. Oh, and don’t forget Republican Attorney General Daniel Cameron’s clear signal to public officials last year that they may conduct public business on their private devices, allowing them to circumvent pesky public disclosure laws.

“What’s going on here? Proponents of such measures are always ready with talking points laying out their supposed good intentions. But we’re not fooled. Amid a national political climate in which anti-media rhetoric is a cornerstone of mainstream conservative campaigning, are we really expected to believe it’s just an innocent coincidence that state Republicans are flooding the zone with a series of anti-journalism, anti-free speech and anti-transparency proposals?”

Amye Bensenhaver is a retired assistant attorney general, open government advocate, and blogger for the University of Kentucky Scripps Howard First Amendment Center. Along with Jennifer P. Brown, former editor of the Kentucky New Era and publisher of an online news site in her hometown of Hopkinsville, she helped establish the Kentucky Open Government Coalition to provide a voice for all citizens who support government transparency and accountability. 

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