Critics: Bill threatens to upend open records law

Ky. lawmaker says he’s willing to revise wording

FRANKFORT — A bill introduced this week could dramatically reduce the number of government records the public can review under Kentucky’s open records law and shield them under a “cloak of secrecy,” opponents say.

But House Bill 509’s sponsor, Rep. John Hodgson, R-Fisherville, says that is not his intent and he is willing to change its language if that’s the case. The bill’s goal is to protect the privacy of the state’s executive branch employees, Hodgson said.

The bill would change the definition of a “public record” under Kentucky’s open records law, which allows members of the public to view documents that shed light on the workings of government at all levels.

“This is a massive sea change in the open records law,” said Michael Abate, an open records attorney who represents The Courier Journal.

“The potential for abuse is just flashing red lights,” Abate said.

That’s because HB 509 would shield eight types of documents from public review, including preliminary drafts, memos or emails discussing policy and scheduling materials.

It would change the definition of a public record to only those materials that give notice “to a person outside the public agency of a transaction or final action” and gives examples of such materials, including documents about contract awards, agency spending, fines or public declarations.

Documents such as emails between school district officials relating to a coach being fired, body camera videos from law enforcement agencies, and text messages and emails within a public agency about routine business would now be put beyond the bounds of open records act, Abate said.

Amye Bensenhaver, co-director of the Kentucky Open Government Coalition and a retired assistant attorney general, agrees with Abate.

“This is the public’s business,” Bensenhaver said. “We are entitled to know what (officials) say ... not just how they vote.”

Willing to change the bill?

Hodgson told The Courier Journal the bill would not limit the public’s access to documents and said he is willing

to revise the bill to limit its reach.

“My offer is this: If someone can point to a type of record that is disclosable under current law that would NOT be disclosable under HB 509, I will gladly revise the language,” Hodgson wrote in an email. “Every record that is disclosable now remains disclosable.”

Abate said the bill would change indeed change access. “Anyone who says that it isn’t going to limit what’s available is just wrong,” he said. “They don’t understand ... how the open records act is implemented.”

Abate added that he and other members of the Kentucky Press Association would be “happy to meet” with legislators to discuss their concerns.

“This bill is about picking records that have always been available to the public and shielding them under a cloak of secrecy.”

Michael Abate

Privacy concerns called ‘red herring’

A case decided by the state’s Court of Appeals in October found that officials’ private text messages are subject to the open records law provided that other requirements of the law — including privacy requirements — are met. That matter could be considered by the Supreme Court, which concerns Hodgson.

His bill would create an exemption in current open records law to protect executive branch employees’ privacy and to “clearly indicate legislative intent,” he said.

Abate said if that exemption is enacted, public officials and employees would be able to use their private email accounts and devices without any public oversight.

“The mayor could email somebody from Gmail and ask for a bribe and you couldn’t get that record,” Abate said.

“The concern about privacy and government employees is a red herring,” Abate said. “This bill is about picking records that have always been available to the public and shielding them under a cloak of secrecy, and it’s a real problem.”

Under current open records law Kentuckians can access any documentation “prepared, owned, used, in the possession of or retained by a public agency” through an open records request. There are, however, exceptions that relate to areas such as personal privacy, economic development and legal matters.

The law as it is written now strikes a reasonable balance between the public’s right to know about the workings of its government and the need for confidentiality and privacy, Bensenhaver said, adding that additional privacy protections are not needed because those exist in current law.

“The sponsor of this bill clearly either doesn’t understand the scope of what he’s doing or is erecting a smokescreen to what he is really doing,” Bensenhaver said.

The bill is co-sponsored by House Speaker David Osborne, R-Prospect, and Rep. Jason Nemes, R-Louisville. It has not yet been assigned to a committee.

Reach Rebecca Grapevine at rgrapevine@courier-journal.com. Reach reporter Hannah Pinski at @hpinski@courier-journal.com or follow her on X, formerly known as Twitter, at @hannahpinski.

open records attorney