2021 LEGISLATION AFFECTING OPEN GOVERNMENT
1. "SB 48 https://apps.legislature.ky.gov/record/21rs/SB48.html
Title: AN ACT relating to personal information.
Sponsor: Senator Danny Carroll https://legislature.ky.gov/Legislators/Pages/Legislator-Profile.aspx?Di…
Summary:
• Amend KRS 61.870 by creating a definition of "public officer" (currently undefined) at KRS 61.870(10) as: Sworn public peace officers and public safety officers (first responders, active and retired judges, CHFS investigators, prosecutors, correctional/probation officers, emergency call center employees
• Amend KRS 61.878 by creating a new exception to the open records law at KRS 61.878(1)(q) for records that reveal the address or location of a public officer. The exception would exclude:
• "Personally identifiable information in records that would reveal the address or location of a public officer if that officer has notified the public agency responsible for those records, in writing with verification of employment, that he or she does not want the information to be made public.
Last action:
01/13/21 Assigned to Senate Judiciary Committee
KOGC position: Oppose
KRS 61.878(1)(a) ("Privacy Exception") is construed to exempt home addresses of all public officers/employees absent a compelling public interest in disclosure. Compelling interest includes a residency requirement for holding public office or employment. Existing law ensures protection under most circumstances, and SB 48 ignores the possibility of a competing public interest that outweighs public interest.
Vaguely worded. Is "address"limited to home address or intended to include work address. What is meant by "location"? There is a compelling public interest in a public officer's "location" relative to the discharge of (or failure to discharge) his public duties at any particular time.
2. HB 141 https://apps.legislature.ky.gov/record/21RS/prefiled/BR985.html
Title: An Act relating to private information of public officials and declaring an emergency
Sponsor: Representative John Blanton https://legislature.ky.gov/Legislators/Pages/Legislator-Profile.aspx?Di…
Summary:
• Create a new section of the Open Records Act exempting personally identifiable of judges, prosecutors, and law officers from the Act
Last action:
01/07/21 Withdrawn
02/11/21 Re-filed as HB 520
KOGC position: Opposed as originally filed
3. HB 273 https://apps.legislature.ky.gov/record/21rs/HB273.html
Title: An Act relating to public records and declaring an emergency.
Popular name: Bailey Holt-Preston Cope Victim Privacy Act
Sponsor: Rep. Chris Freeland https://legislature.ky.gov/Legislators/Pages/Legislator-Profile.aspx?Di…
Summary:
• Amend the Open Records Act to create a new exception at KRS 61.878(1)(q) for photographs or videos that depict the death, killing, rape, or sexual assault of a person
• Excludes body cam video
• Photos and videos shall be made available at the request of any party 14 who was involved in the underlying incident
Last action:
02/09/21: Passed 93-1 (H)
02/22/21: to Judiciary (S)
KOGC position: Oppose
Victims' privacy, which this bill is intended to protect, is already adequately protected by KRS 61.878(1)(a), the existing "privacy exception" in the Open Records Act.
By creating a categorical exception for "photographs or videos that depict the death, killing, rape, or sexual assault of a person," the bill ignores a superior public interest in some cases, including, for example, bystander video in the George Floyd case and surveillance video in the Rayshard Brooks case.
The existing privacy exception requires a "weighing of competing" public and private interests that facilitates agency accountability. The absolute barrier to public access, which the bill would erect, undermines agency accountability.
4. SB 201 https://apps.legislature.ky.gov/record/21rs/SB201.html
Title: An act relating to open records
Sponsor: Sen. Adrienne Southworth https://legislature.ky.gov/Legislators/Pages/Legislator-Profile.aspx?Di…
Summary: Amend KRS 61.880(4) to allow persons to complain to the Attorney General if the person feels that the intent of the open records law has been subverted by an agency by delaying past the three day time period for answering an open records request, or by excessive extensions of time.
KOGC Position: Support
Since this bill does not make a substantive change to existing open records law in its current form, the Coalition does not oppose it
Last action:
02/09/21 Introduced
02/10/21 To State and Local Government(S)
5. HB 520 https://apps.legislature.ky.gov/record/21rs/HB520.html
Title: An act relating to private information of public officials and declaring an emergency.
Sponsor: Rep. John Blanton https://legislature.ky.gov/Legislators/Pages/Legislator-Profile.aspx?Di…
Summary: This is the revised version of Blanton's earlier bill, HB 141, which he withdrew on January 7 in response to protests from open government advocates.
• Omits the first and last names of judges, prosecutors, and police officers from the definition of "personally identifiable information," thus eliminating the greatest objection to HB 141.
• Rather than declaring all "personally identifiable information" exempt from the open records law and imposing an affirmative duty on public agencies to redact the information from all websites they manage within 72 hours of its effective date, HB 520 requires judges, prosecutors, and police officers to submit written requests to the custodial public agency to have personally identifiable information (now excluding first and last names) designated confidential and to redact the information within 72 hours.
• The bill creates a series of criminal offenses for knowing, wanton, or reckless dissemination of personally identifiable information by data brokers and other "persons" after the judge, prosecutor, or police officer submits a written request to the data broker or "person" to remove the information from public websites.
• The bill also recognizes a civil cause of action for injuries suffered as a result of dissemination by data brokers and "persons."
KGOC position: Neutral (the bill's most controversial features relate to criminalizing secondary use of—rather than access to-- the protected information virtually all of which is currently protected under the privacy exception tot the open records law (KRS 61.878(1)(a))
HB 520 is an improvement over HB 141 insofar as it excludes first and last name from the definition of personally identifiable information. It raises a number of questions relative to interpretation and implementation. There is strong momentum for the bill but lawmakers must consider the burdens imposed on public agencies in application and potential legal challenges.
Last action:
2/11/21 To Committee on committees
2/23/21 Assigned to Judiciary(H)
Watching:
1. HB 132: An Act relating to legal actions concerning the exercise of a person's constitutional rights.
https://apps.legislature.ky.gov/recorddocuments/bill/21RS/hb132/orig_bi…
Sponsor: Rep. Nima Kulkarni; Rep. Jason Nemes
Last action:
01/15/21 Assigned to Committee on Committees
KOGC position: Support
Summary: This bill will eliminate retaliatory legal actions by public agencies against public records requesters. Most states have enacted analogous "Anti-SLAPP (Strategic Lawsuit Against Public Participation)." Kentucky is in the minority.
2. HB 6: An Act relating to legislative oversight
https://apps.legislature.ky.gov/record/21rs/hb6.html
Multiple sponsors
Last action:
01/11/21 Passed 72-23(H)
02/22/21 Passed 28-6(S)
Summary: Changes the name of the Legislative Program Review and Investigations Committee to the Legislative Oversight and Investigations Committee and authorizes secrecy in the re-named committee's information and working papers as well as its meetings.
Critics express concern about the extent to which it will further erode the Governor's power — all without the transparency & accountability that the open records and meetings laws normally provide.
A similar proposal was rejected in 2009 based on objections to the committee's redundancy (investigative authority resides in the AG & Auditor) and to its exclusion from open government laws.
A proposed amendment to HB 6 by Rep. Derrick Graham aimed at removing the anti-transparency provisions was defeated.
