'A giant loophole': Despite changes, open records bill still problematic, advocates say

FRANKFORT — A bill aimed at changing Kentucky’s open records law has been revised in response to criticism but is still problematic, open government advocates say.

Despite revisions, House Bill 509 still has too many loopholes that would harm the public’s right to examine how officials are conducting government business, advocates said.

Kentucky's open records law allows members of the public to view documents that shed light on the workings of government at all levels.

Rep. John Hodgson, R-Fisherville, initially introduced a bill that would have dramatically decreased the number of records the public could view. He agreed to change the bill in response to public criticism.

The bill received approval from a House committee on March 7 on a mostly party-line vote. Two Republicans — Rep. Savannah Maddox, R-Dry Ridge, and Rep. Steve Rawlings, R-Burlington — broke ranks and passed on voting on the measure. The bill passed the full House on March 12.

What does HB 509 do now?

The latest version of the bill requires public officials to use official email addresses for public business and allows agencies to punish them for not doing so.

But it would also limit the records government agencies have to provide to the public to only those records stored on an official device or contained in the official email account.

That part troubles open government advocates.

The bill would create a loophole for officials’ text messages about public business, said Michael Abate, an attorney for the Kentucky Press Association who also represents The Courier Journal.

He gave the example of the Jefferson County Public Schools busing meltdown at the start of the school year, when many JCPS officials texted each other.

“Under this bill, we would not have the right to see what employees were texting each other during the JCPS meltdown. We think that's a loophole that that can be and should be plugged,” Abate said during the hearing.

Public officials could be punished for using non-public email accounts for official business under the bill. But that’s not enough, Abate said, because there’s no guarantee that those records would be subject to the state’s open records law.

That could “create a giant loophole through which somebody who was determined to hide their communications could easily just walk through, text or email in violation of the statute, and say, ‘haha, that's not subject to open records anymore. Nobody can see that.’” Abate said.

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

“This bill (is) ‘back dooring’ blanket authorization to conduct public business on private devices with legal impunity,” Bensenhaver told The Courier Journal. That will create “inevitable harm to the long-recognized and valued public right to know.”

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Hodgson’s statements that public officials must turn over their devices for intrusive searches are incorrect, both Bensenhaver and Abate said.

“If you choose to create a public record on a personal device, you run the risk that, if somebody asks you, you're gonna have to screenshot that text and hand it over. That's it,” Abate said. “No one's asking for intrusive searches of somebody's devices.”

What's next for HB 509?

When asked whether he plans to further change the language of the bill to meet these concerns, Hodgson said via email, “We definitely disagree on this issue.” He did not answer a question about specific examples of public officials having to turn over their devices for intrusive searches.

The House approved the bill on a 61-31 vote on March 12. It now moves to the Senate for consideration.

Gov. Andy Beshear supports the provisions of the bill requiring official business to be conducted with official email accounts, spokesperson Crystal Staley told The Courier Journal on March 1. His office did not immediately respond to a request for comment on the latest version.

"As the former attorney general, the governor has always fought for a fair and transparent government, and he believes this portion of the bill [about the email addresses] helps in this fight," Staley said.

House Speaker David Osborne, R-Prospect, is a cosponsor of Hodgson’s bill. Osborne’s and Beshear’s teams discussed the bill after its initial introduction, The Courier Journal learned.

“It came to our attention that the governor had an interest in the bill and support for the efforts,” Osborne spokesperson Laura Leigh Goins told The Courier Journal in February. “After that, staff from both offices met to review the bill draft and discuss changes the administration suggested.”

Neither Goins nor Staley answered questions about when the meeting was held or which officials were present.

Reach Rebecca Grapevine at [email protected] or follow her on X, formerly known as Twitter, at @RebGrapevine.

This article originally appeared on Louisville Courier Journal: Kentucky open records bill problematic despite changes, advocates say