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Title page House Bill 207
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Title page Senate Bill 62

Two bills containing new exceptions to the open records law were introduced on day one of the 2023 legislative session that resumed after lawmakers took a four week break. 

These new exceptions join the exception for "the name, address or likeness of a winner of a lottery prize that exceeds $7,000,000 if the winner elects to have his or her identifying information withheld" introduced in a bill filed in the first week of the 2023 Regular Session. 

https://apps.legislature.ky.gov/record/23rs/HB70.html

HB 70 seemed redundant and therefore unnecessary -- since the bill would also amend KRS Chapter 154A, dealing with the Lottery Corporation, to protect winners' names -- but better redundant than inexplicable. 

The impetus for Sen. Whitney Westerfield's SB 62 is unknown, and the policies it supports are inscrutable. 

https://apps.legislature.ky.gov/record/23rs/SB62.html

It is described as "An act relating to privacy" and "prohibits a public agency from requiring an individual or nonprofit organization to compel the release of personal information, release personal information in possession of the agency, or require a contractor or grantee with the public agency to provide a list of nonprofit organizations to which it provides financial support."

"Personal information" joins the ever-expanding list of definitions for the open records law necessitated by the law's annual expansion (at the expense of the public's right to know). 

The term is defined as "any list, record, registry, roll, roster, or other compilation of data of any kind that directly or indirectly identifies a person as a member, supporter, volunteer, or donor of financial or nonfinancial support to any nonprofit organization."

Subject to the exceptions found in the bill, "Personal information shall be exempt from disclosure under the Kentucky Open Records Act, KRS 61.870 to 61.884."

Facially, this language is distressing, since the 47 year old law has always recognized an exception for "[p]ublic records containing •information of a personal nature• where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy[.]"

We look forward to an explanation of why a categorical exception for "personal information," along with penalties for disclosure, are warranted under the circumstances described in SB 62.

We welcome any insights into the bill that others may have. 

HB 207, "An act relating to internal police communications," creates a new exception for "records confidentially maintained in accordance with a wellness program" newly authorized under KRS Chapter 15. 

https://apps.legislature.ky.gov/record/23rs/HB207.html

Sponsored by multiple House members, the bill authorizes law enforcement agencies to create their own wellness program -- generally defined as "a program created by a law enforcement agency to support the physical and mental health of law enforcement personnel." These programs "may include but are not limited to an early intervention system, access to mental health counseling, crisis counseling, support systems, training, equipment, and technology necessary for an employee to perform his or her job."

Subject to enumerated exceptions in the proposed amendment to KRS Chapter 15, “all proceedings, records, opinions, conclusions, and recommendations arising from any aspect of a wellness program shall be confidential and privileged from disclosure in any civil or criminal proceeding and shall not be subject to discovery, disclosure, or production upon the order or subpoena of a court or other agency with subpoena power, regardless of who possesses them. The participating officer or telecommunicator shall be the holder of the privilege."

Lest there be any doubt,  HB 207 amends the open records law to exempt "[r]ecords confidentially maintained by a law enforcement agency in accordance with a wellness program, including an early intervention system."

Again, we question the necessity of a categorical exception for records generated in the course of "mental health counseling, crisis counseling" that would almost certainly be protected from public inspection under the 47 year old privacy exception -- barring an overriding public interest in disclosure. 

But we are particularly mystified by that part of HB 207 that extends the "wellness program" privilege to "support systems, training, equipment, and technology necessary for an employee to perform his or her job."

Neither SB 62, HB 207, nor HB 70 have been assigned to committee, or publicly vetted. We are hopeful that our concerns (and confusion) will be at least partially allayed in upcoming debate.

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