House Bill 509 presents a dangerous loophole that promotes less transparency in government

Laws. Why do we even bother to have them?

Mark White is Editor of The News Journal.

Let’s take stealing for instance.

Unless you have some type of mental defect, then you know that stealing from someone is wrong. The vast majority of folks in the world are pretty good people, and don’t steal from others. This isn’t to say that no one steals.

We put laws in place, in part, so there are safeguards to discourage people from doing the wrong thing, such as stealing. Sometimes, we need laws to punish them when they do the wrong thing.

Think of our laws like guardrails, which are meant to keep society from careening off the proverbial cliff. Is this example a little melodramatic? Sure, but it makes my point that some laws are necessary even if certain things should be common sense.

Now, let’s consider open records and open meetings laws.

Our government is funded with taxpayer dollars. What the government does is, by and large, funded with taxpayer money whether it is money from the federal, state or local government.

Given that government business is funded with taxpayer money, then, we, the taxpayers, are by and large entitled to know what the government is doing.

I think just about everyone can agree that government meetings should be open to the public. Government officials at these meetings are doing the public’s business. Therefore, the public is entitled to see and hear what these government officials are doing.

What about government records?

With some exceptions, the Kentucky Open Records Act requires that most government documents be available for the public to view. Our tax money paid for them to be generated after all.

The Kentucky General Assembly is currently considering HB 509, which would amend the state’s open records act, and not in a good way.

Let’s start with the portion of the bill that isn’t bad.

HB 509 would require government agencies to furnish each of its officers, board members, and commission members an agency-furnished email account for the purpose of conducting the business of the public agency.

The bill prohibits employees, board members, commission members, etc., from using an email account other than an agency-furnished email account or agency-designated email account to conduct the official business of that board, commission, public agency, etc.

Most of our government officials, employees, board members and so forth are pretty honest and straight forward people, who would abide by this law as it is intended.

It seems pretty straight forward, kind of like not stealing. Only use your government email for conducting government business so that the public knows what their government is doing.

Right about now, you are probably wondering why this would not be a good thing? This portion of the proposed law is, but as the old cliché goes, the devil is in the details.

What about those officials – kind of like those people who choose to steal – who don’t want to leave an electronic trail about what they are up to? What about the people, who deliberately want to circumvent public transparency rules? What about the people, who would find it more “convenient” not to have certain actions they took come out in public, which could happen if they used an email that is subject to the Kentucky Open Records Act?

One of the problems with HB 509 is that while it prohibits officials from using any other email account for government work, the proposed law says nothing about using other electronic means, such as text messages, Facebook Messenger, etc.

In short, it creates a giant loophole that officials can use get around the Kentucky Open Records Act.

If an open records request is filed with a governmental agency, the agency “shall only be required to search for or produce to a requesting party electronic information or documents” that are stored on official devices or on an official email account, the bill reads.

Keep in mind that use of text messaging in an effort to get around the Kentucky Open Records Act is already taking place.

First Amendment attorney Michael Abate, who represents the Kentucky Press Association, was one of five people last week to testify to the senate committee in opposition of this bill.

Abate noted that auditors investigating the Jefferson County Public School transportation debacle last fall were surprised by the lack of internal emails.

A Jefferson County Public School leader stated they “felt encouraged to use cell phone texting instead of district email because it was perceived that texting was less subject to open records requirements,” the audit read.

“That is going to be the norm. That is what everyone is going to do if you pass this bill. That is what is going to happen. It is human nature,” Abate testified. “I understand the desire to create email accounts. I think that is a good thing. On balance, this law doesn’t enhance transparency. It destroys it in a very un-American way where the citizens of Kentucky will no longer have access to records they have had for 40 years.”

So what prompted this legislation?

Last fall, the Kentucky Court of Appeals ruled in a case involving the Kentucky Fish and Wildlife Commission that text messages related to official commission business and stored on the personal cell phones of its members are public records generally subject to disclosure under the Open Records Act.

Senator Gex Williams (R) was one of three senators to vote no on the proposed bill during last week’s senate hearing.

“Privacy versus our governmental records, there is an issue there that absolutely, positively needs to be addressed, but we haven’t addressed it in a way that really accommodates the necessity for open records, government records to be available to citizens that are concerned,” Williams said during the hearing.

A fourth senator voted to pass during last week’s committee hearing. Six senators voted to approve the bill.

The bill has now had two readings on the senate floor.

The bill still needs a final vote on the senate floor and to be signed by the governor before it becomes law.

At this point, it only needs a final vote on the senate floor when the state legislature resumes its session on April 12 or on the last day, which is April 15.

I would strongly encourage the senate to vote against this bill, if it comes up for a vote. If the senate approves the measure, then I would encourage Gov. Andy Beshear to veto this bill.

It is bad legislation.

Never has the public benefited from less governmental transparency.