Approximately nine minutes.
That was the duration of the March 12 floor debate in the House of Representatives on House Bill 509.
Approximately nine minutes to reverse nearly a half century of open records law and effectively repeal statutorily established and enforceable rights of public access to records based on their nature and content rather than on the place where they are stored.
Approximately nine minutes to upend decades of legal interpretation to the obvious detriment of the public’s right to know.
At 2:43 pm, HB 509 was taken from the Regular Orders of the Day “and placed upon its passage.”
HB 509’s chief sponsor, Rep. John Hodgson, again introduced his open records bill as one aimed at closing a “gap” in the law created by the explosion in the use of email, texts, and other forms of electronic communication to conduct public business.
Amye Bensenhaver
The mechanism through which HB 509 achieves this goal, according to its sponsor, is the mandatory assignment of public email addresses to all public employees, officers, commission members, and board members with direction to use these public accounts, exclusively, to conduct public business or risk agency imposed discipline.
No surprises there.
(We remain unconvinced this will close the purported gap. In our view, there is a far greater likelihood it will create a gap in the open records law through which officers and employees inclined to evade public oversight will be able to drive a truck.)
What was surprising was the unenthusiastic opposition to the bill that 31 lawmakers who ultimately voted “no” to HB 509 were able to muster.
Never have I observed, nor could I have imagined, such oppositional anemia and resignation in the face of a direct frontal assault –of unparalleled magnitude — on the laws securing the bedrocks of democratic government: transparency and accountability.
Only two representatives, Lindsay Burke (D-Lexington) and Rachel Roarx (D-Louisville), even questioned the bill’s sponsor and — as if they had been instructed to rein in their opposition — neither seemed too exercised.
Burke discussed, but did not call, six floor amendments aimed at “increasing accountability” that she filed on March 8 following the previous day’s heated debate of HB 509 in the House State Government Committee. That debate ended in a 12-4-2 vote advancing the bill.
In particular, she focused on House Floor Amendment 7, adding the requirement that public agencies provide each employee with a mobile device or a “digital communication application that is within control of the public agency which may be used on a personal device.”
The latter, she suggested, would secure “government business through official channels” while “not giving up privacy rights” — a proposal that seems to stem from the same erroneous premise that majority lawmakers have advanced, to wit, that public employees and officials are constrained to forfeit their private devices and accounts to fulfill open records requests.
Burke offered “tentative support” for HB 509.
Rep. Rachel Roarx asked the sponsor to describe the “larger provisions” of the bill and how Kentuckians can expect “to do business going forward.” Hodgson restated much of what he previously stated.
Additionally, Roarx asked about the existence of a fiscal note identifying the costs of implementation of HB 509.
Hodgson’s response?
“Negligible.”
Mercy! Not exactly a grueling line of inquiry.
With that, Speaker David Osborne called for a vote, and the fate of Kentucky’s open records law — at least to the extent of House approval — was sealed.
Where, we ask, was any one of the 31 lawmakers who voted “no” to HB 509? Why were they so strangely silent? Or were they silenced? And if so, by whom??
Let me state this plainly: HB 509 is an unwelcomed and unwarranted “legislative fix” to the bogeyman manufactured by anti-open government lawmakers’ in reaction to recent court opinions recognizing that electronic communications “on personal cell phones are public records when such messages are prepared by or used by the [public agency] members and relate to or concern [public agency] business.”
It is undeserving of legislative, gubernatorial, and popular approval if we must accept — in exchange for a fatuous provision mandating assignment of public email addresses to public agency employees and officers and directing employees and officers to use them — a substantial limitation on public agency duties in responding to open records request through the cynical exclusion from the open records law of a vast cache of public employee and officer generated records relating to public agency business simply because it is conducted and stored on a private device or account.
If we can’t beat them in the courts on this important open records issue — lawmakers’ (and apparently more highly placed “other’s”) fear and loathing of public oversight goes — we will garrote the open records law. Their open records “modernization” is anything but a step in the right direction!
Unfortunately, we will never know. The very electronic communications that would prove their hypocrisy will forever be out of public reach.
Approximately nine minutes.
Nine minutes.
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.
