By AMYE BENSENHAVER

Guest columnist

Should Kentucky abandon 44 years of open records law guaranteeing “any person’s” right of access to public records, in order to alleviate the “cost to taxpayers” that city officials claim resulted from a 2019 change requiring agencies to accept emailed open records requests?

The Kentucky League of Cities presented its 2020 legislative agenda to the Interim Joint Committee on Local Government on Nov. 21. Among the items the League proposed is an amendment to “reduce the cost to Kentucky taxpayers of responding to numerous requests from out of state requestors.”

The proposed amendment, it seems, would limit or eliminate the rights of nonresident requestors to use Kentucky’s open records law.

The details of the proposed amendment are unclear, but it echoes a failed bill introduced in the 2019 legislative session. That bill would have amended the open records statute guaranteeing “All public records shall be open for inspection by any person” to “All public records shall be open for inspection by *any resident of the  Commonwealth*.”

The League proposal is prompted by an apparent increase in requests resulting from the amendment mandating agency acceptance of emailed request which took effect in late June, 2019.

The amendment, sponsored by Sen. Wil Schroder (R-Wilder) was intended to require public agencies to accept emailed open records requests in addition to requests submitted in person, by U.S. Mail, or by fax. Ambiguities in drafting, cited by KLC as a basis for asserting that agency acceptance of emailed requests remains permissive, have led to calls for clarification.

Is it possible that KLC is exaggerating the unwelcomed “costs” of the new law, and capitalizing on calls for clarification, to advance its longer-term goal of limiting use of Kentucky’s open records law to residents only?

KLC cited statistics to the Interim Committee indicating that Kentucky’s cities receive about 4,500 open records requests each year and expend 750,000 hours fulfilling those requests.

Assuming for the sake of argument that each request requires, on average, nearly 170 hours, as these statistics suggest, the statistics are incomplete. KLC does not indicate how many of those requests were submitted by email or how many were submitted by nonresident requesters. Since the new law did not take effect until June 2019, the statistics cannot tell a full year’s story.

KLC, and perhaps others, are apparently intent on walling Kentucky’s public records off from nonresident requesters. They characterize the proposed legislation as an agency resource/cost saving measure. Sadly, their position fails to recognize that “the importance of state government information does not stop at state lines.”

It also fails to recognize that the handful of “resident-only” public records laws that exist across the country are so porous, so easily evaded, and so inconsistently enforced as to render them useless. No known data confirming their effectiveness as an agency resource/cost saving measure exists. Florida and Georgia have eliminated earlier “resident only” requirements.

Verification of residency poses enormous challenges for agency officials, stalling the process for both residents and nonresidents. Nonresidents intent on accessing public records governed by resident only open records laws regularly do an end run around the statutes by locating resident “middlemen” to make the requests on their behalf. Enforcement in most of the states is uneven and inconsistent.

And there is a very real human toll. A nonresident seeking information on a suitable nursing home for an aging parent may be denied access to nursing home inspection reports. A nonresident victim of a crime, or involved in a car accident, may be unable to access law enforcement records. A nonresident living just over the state line, who has a direct interest in local records, may be turned away.

Residency requirements also slam the door on nonresident genealogists, researchers from all disciplines, journalists, and, yes, data gatherers, including those that provide employment background checks, consumer credit checks, and automobile history/safety information.

With respect to KLC’s general claims about the cost to taxpayers, Kentucky’s open records law enables agencies to require prepayment for copies of public records, reducing the likelihood that they will be “stiffed.” When dealing with a commercial user, as defined in the open records law, Kentucky’s agencies are not limited to recovery of the actual costs of making copies, excluding staff costs. Agencies may charge a commercial user the actual costs and the cost of “staff required to produce a copy of the public record or records,” as well as the “cost to the public agency of the creation, purchase, or other acquisition of the public records.” This offsets the “cost to taxpayers.”

The question for Kentucky lawmakers, and for all Kentuckians, is whether we will join the ranks of that small minority of states which have enacted retrogressive laws that impede both nonresident and resident access to public records, that are easily evaded, and that are inconsistently enforced, on the thin claim that the burden on taxpayers will be lifted.

Or will we preserve our current law, which mirrors the vast majority of state public records laws and recognizes that the value of our records does not stop at the Kentucky state line?

 

Amye Bensenhaver is a retired assistant attorney general and co-founder of the Kentucky Open Government Coalition.