Public escapes 2019 general session with access to government intact

Published 7:11 pm Friday, March 29, 2019


Guest columnist

It was down to the wire, but Kentuckians narrowly escaped passage of several new exceptions aimed at reducing the rights they currently enjoy under the open records law.

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Much has been written about HB 387, a bill originally aimed at substantially reducing the public’s right of access to records relating to economic incentives offered by state and local officials to lure new business to Kentucky. A committee substitute that included multiple unrelated exceptions to public access, as well as a proposal to exclude non-residents from using the open records law, passed out of committee. The bill, with committee substitute, died on the House floor.

Its sponsor has indicated he will attempt to hammer out a more narrowly tailored bill with critics of HB 387 in the interim.

Less has been written about SB 193, which was originally filed as SB 14 and quickly withdrawn in the face of overwhelming opposition. The bill, ostensibly the brain child of a Secret Service agent and a Kentucky Homeland Security employee, defies easy description even in its pared down version.

The sponsor’s stated goal was to provide enhanced protection to peace officers and other “at-risk” public employees by restricting access to their “protected” personal information as described in the bill. For reasons too numerous to list, the bill could not be reconciled with the existing open records law. In particular, the bill assigned substantial monetary penalties to records custodians for disclosure of “protected” information, thus disincentivizing production of public records.

It, too, was passed to the interim for further discussion.

To nearly everyone’s surprise, HB 354, a tax clean-up bill, introduced a new exception to the open records law for “information acquired by the Department of Revenue in tax administration.” There was no public notice of, or debate on, the exception. It was buried in a 233 page tax bill that was not released to the public until after final passage and it included an emergency provision. The Department of Revenue sought the exception as a legislative “cure” for an adverse Kentucky Supreme Court ruling it received last year.

Revenue omitted this critical fact in selling lawmakers on the new exception. And this, apparently, did not sit well with lawmakers.

Open government advocates breathed a sigh of relief in the waning hours of March 28 when both chambers passed HB 458, a tax clean-up bill aimed at cleaning up HB 354, the previous tax clean-up bill. From an open government perspective, the critical feature of HB 458 is found in its last section. There, lawmakers repealed the offending language from HB 354 and eliminated the new exception to the open records law.

The governor is expected to sign the bill.

The ink is still wet on HB 458, and the short lived exception found in HB 354 will pass into history as the “William Henry Harrison” of open records exceptions, but for now we feel semi-confident in reporting that we weathered the storm of the 2019 legislative session with no new restrictions on the public’s rights under the law.

Be warned: Summer storms may be approaching; and winter storms are expected in 2020.

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 recently helped establish the Kentucky Open Government Coalition to provide a voice for all citizens who support government transparency and accountability. This article first appeared on the Kentucky Open Government’s Facebook page.