With heavy emphasis on “unchecked authority” and the “erosion of transparency and accountability in the sale of [hunting and fishing] permits and licenses,” Governor Beshear today vetoed HB 344 — passed on April 14, the final day of the session — authorizing the Department of Fish and Wildlife Resources to name any ”persons, governmental entities, businesses, or organizations meeting the requirements specified by statute and by the department by administrative regulation as agent for the sale of specified licenses and permits or other items for the department.”
Stated simply, the vetoed law authorized Fish and Wildlife to outsource the sale of licenses and permits to unregulated and unaccountable third party entities.
In his veto message, the Governor observed:
“[HB 344] gives a department with a history of not following procurement law the ability to completely hand over the licensing and permitting process that accounts for 95% of the department’s funds to third party entities outside of Kentucky. HB 344 would permit this result without following any procurement process, without requiring any written agreement between the department and the third party entity, and without any oversight of the actions of the third party entity.”
The Governor emphasized the exceedingly poor judgment — our words, not his — of lawmakers in overriding his veto of SB 217, “giving the commissioner of the department sole power over procurement and all personnel appointments in the department.” He noted that “a brief review of the department’s recent procurement abuses explains why oversight is necessary.”
With specific reference to the open records law, the Governor wrote:
“HB 344 does not require any agent the commissioner designates to sell licenses or permits to keep a correct and complete record of all licenses or permits applied for or issued, or all other records that Kentucky law requires to be kept. In fact, the bill expressly removes any such agency from the requirement under current law that license and permit records be public records that must be open to inspection under the Kentucky Open Records Act.”
While past attorneys general, including Beshear, applied the widely accepted interpretation of “possession” of a record — in the definition of “public record” — to include “constructive” possession of records held by and for a public agency by a third party entity, Attorney General Daniel Cameron has rejected this interpretation in other legal contexts. Records held by and for a public agency, but not physically possessed by a public agency — his seriously flawed reasoning goes — are not public records.
https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=51390 (See subsection 2.)
It was therefore even more imperative that Beshear thwarted lawmakers’ ham fisted attempt to create a legal mechanism by which Fish and Wildlife could evade public accountability, placing public records in a private entity’s exclusive hands.
Today’s veto of HB 344 is one of the only bright spots in an otherwise dismal 2022 legislative session.