House Bill 302 could allow public officials to circumvent open records with personal devices

By AMYE BENSENHAVER

Guest columnist

When it was introduced into the House of Representatives on Feb. 2, House Bill 302 was described as “An act relating to reorganization.” At that time, its stated purpose was to “Amend KRS 12.020 and 12.252 to create the Professional Licensing Legal Division within the Public Protection Cabinet; create the Office of Administrative Hearings within the Public Protection Cabinet; confirm Executive Order 2017-325.”

As amended on March 21, HB 302 redefines — or to employ its sponsor’s term, “clarifies” that “emails, texts or calls on devices paid for entirely with private funds and which do not involve government email accounts” are not “public records” as that term is otherwise defined in the Open Records Law.

Ironically, the amendment’s sponsor — who was surely no fan of Attorney General Jack Conway — pointed to a 2015 open records decision issued by an absent Jack Conway in the waning hours of his final day in office and in the face of strong opposition from his open records merit staff who had made repeated unsuccessful efforts to engage him in a discussion of this critical issue.

No open records merit staffer would sign the open records decision.

We knew what a devastating blow to open government this decision represented; we knew that the overwhelming weight of legal authority did not support his position; we knew that nearly every state had taken an opposing position in caselaw or in statute;  and we knew that, quite frankly, the decision opened the door to abuse of both the Open Records and Open Meetings Law.

Describing the amendment as a “clarification” of existing law, the sponsor pointed out that Conway’s decision had not been “contradicted by any court.”

That’s easily explained. No legal challenge to the decision has ever been filed in the courts, and no court has ever reviewed it or a similar decision. The AG’s staff — most of it anyway — has done everything in its power to minimize the damage wrought by this reckless, eleventh hour — more like 11:59 — act.

HB 302, in its original form, passed out of the House on Feb. 23, on an 82-1 vote. It was received in the Senate on Feb. 26. It was then assigned to the Licensing, Occupations, & Administrative Regulations Committee, reported favorably, received its first reading and placed on the Consent Calendar on March 13. Without amendment, the bill received its second reading on March 14, and was sent to the Senate Rules Committee.

And this is where something went terribly wrong.

On March 19, HB 302 was taken from the Rules Committee and recommitted to the Senate State and Local Government Committee. On the same date, HB 216 — which had been posted for passage in the Regular Orders of the Day for February 28 — was mysteriously taken from the Regular Orders of the Day and recommitted to the House State Government Committee where its future looked very bleak. The Bluegrass Institute has opposed HB 216 because it divests citizens of their existing legal, albeit limited, right to attend the nonexcepted portions of the meetings of “selection committees” created by statute within the Finance Cabinet for the purpose of interviewing and ranking finalists for multi-million-dollar, built-to-suit projects authorized under authority of KRS Chapter 56. It, too, represents an attempt to restrict the public’s right to know.

On March 21, the Senate State and Local Government Committee heard testimony on HB 302 in the last few minutes of its committee meeting. The committee heard brief testimony from the sponsor of the original bill.

Also seated at the table was a representative from the Kentucky Department for Libraries and Archives who was present to testify about another ostensibly moribund bill, SB 186, that has been rolled into HB 302. He blithely acceded to the committee substitute that will undermine the essential work admirably performed by that agency in the past, and raised no objection whatsoever to the redefinition of the term “public record” — defined almost identically in KRS Chapter 171, which governs KDLA.

Additionally, a representative of the Finance and Administration Cabinet was present for the purpose of resurrecting HB 216 as part of HB 302 and thereby eliminate selection committees, as described above, from the requirements of the Open Records and Open Meetings Laws.

The net result: Senate Amendment 1, filed by Sen. Damon Thayer, R-Georgetown, to HB 302, redefining the term “public record” in a way that gravely threatens open and accountable government, was rolled into the Committee Substitute  that engrafted HB 186 (undermining the vital work of the Kentucky Department for Libraries and Archives) and HB 216 (divesting the public of existing open records and meetings rights as they relate to the built-to-suit procurement process) into HB 302, and it passed out of committee without opposition and was placed on the consent calendar. That’s quite a day’s work for those who oppose the public’s right to know!

If this bill is enacted into law, it will — without question — represent the single most devastating blow to transparency in government in my 27 years of involvement with the Kentucky Open Records and Meetings Law.