With only a few days remaining in the 2024 Regular Session, the fate of House Bill 509, “An Act relating to access to the records and meetings of public agencies,” is still uncertain.
The bill passed out of the House of Representatives last week, with virtually no “debate,” by a vote of 61-31. It was assigned to the Senate State and Local Government Committee on March 15.
Did the Governor’s inexplicable (and still candidly explained) support for the bill contribute to the absence of meaningful debate on the House Floor?
Amye Bensenhaver
Recent Lawsuits Underscore the Dangers of HB 509
Opponents point to two recent lawsuits — an open records lawsuit filed by Louisville Public Media against Jefferson County Public Schools and an open meetings lawsuit filed against members of the Nelson County Board of Education by a group of concerned parents — as proof that HB 509 will dramatically alter the open records landscape in Kentucky — at the expense of public oversight of the agencies that serve it.
At the heart of each case are emails and texts exchanged by school officials and employees, or board members, concerning urgent district business on private devices and personal accounts.
And, as if on demand, a third lawsuit growing out of emails and texts about public business exchanged on private devices and personal accounts has been reported.
WKRC Local12 reported on the resignation of Walton, Kentucky’s mayor as an investigation into misuse of city credit card proceeds.The city resisted disclosure of the credit card statements, but earlier released private emails and texts suggesting the mayor’s animus toward the plaintiff in the lawsuit.
In a message to a Kentucky Open Government Coalition official (this writer), plaintiff’s attorney Steve Magerle emphasized that “the proposed changes to the open records act would have prevented this from being uncovered.” Officials’ emails and texts concerning the mayor, exchanged on private devices and personal accounts, would have been inaccessible.
Citizen Critics Expose Broad Opposition to HB 509
Meanwhile, an informal Facebook poll shared with the Coalition by @RaisingVoicesOC confirm substantial citizen opposition.
In response to the question, “Why do you think the Kentucky General Assembly wants to change the open records law,” 76% of the respondents voted “To hide things from us;” 10% voted “To make leadership happy;” 2% voted “To support transparency;” and 12% voted “Unsure.”
The people speak — perhaps unscientifically — but in a useful barometer of public opinion.
A commenter notes that Sen. Adrienne Southworth is currently working on amendments. The Kentucky Open Government Coalition cannot confirm this. We strongly believe that the bill is, yet again, a solution in search of a problem and that it should be abandoned.
We do not oppose the mandatory assignment of public email addresses, but vigorously oppose statutory limitations on agency “search” for and production of responsive records stored on private devices and personal accounts. And what about text messages on private devices which are not addressed in the current bill? So many unanswered questions. So many loopholes.
If the comment is correct, we offer our assistance to Sen. Southworth in her efforts to minimize the harm by amendment.
A Prominient Critic Communicates His Opposition to HB 509
Lexington’s WKYT reported that the President of RTDNA, Radio Television Digital News Association, Dan Shelley, “wrote a letter to legislative leadership against the bill.”
“’If the public doesn’t know something is wrong because they can’t access public records, how are they going to demand that their lawmakers and their governor fix it?’ he asked.
“Shelley fears there are still too many loopholes.
‘It’s amazing to me that the sponsors of this bill have tried to sneak by the public in the form of a silk purse, which really is a sow’s ear,’ he said.
“’This really is a dangerous bill for all members of the public who want to access public records in the commonwealth of Kentucky.'”
In the Face of Vigorous Opposition, HB 509 Remains A Serious Threat
Recent lawsuits confirm the dangers posed by HB 509. Vocal opposition to HB 509 continues to swell at the grassroots and national level. Will lawmakers listen?
Sadly, as WKYT concludes: “House Bill 509 was not on Wednesday’s [Senate State and Local Government Committee] agenda but could be brought up next week when the committee may meet again.”
Amye Bensenhaver is a retired Kentucky assistant attorney general who wrote open records and open meetings decisions for 25 years. She is co-founder and co-director of the Kentucky Open Government Coalition. This commentary first appeared on their website.
