Guest columnists: 'Secrecy is the cancer on state, local government that spreads mistrust'

By Adrienne Southworth and Amye Bensenhaver Guest columnists

Mar 9, 2021

Editor's note: This column was updated at 2:04 p.m. on March 11.

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Open records laws are an issue on which Kentuckians of all political stripes agree.

Open records laws are under attack in Kentucky.

So a right-leaning freshman state senator and a left-leaning retired assistant attorney general — both advocates for open records — recently came together to oppose HB 312.

Kentucky open records laws were enacted in the immediate aftermath of Watergate and the Vietnam War — an era when public mistrust of government was at historic levels.

With this impetus, Kentucky's lawmakers enacted the open records law in 1976. The law favors public access, expressly recognizing that "free and open examination of public records is in the public interest" even though such examination "may cause inconvenience or embarrassment to public officials or others."

Fast forward 45 years. Public mistrust of government is again at historic highs. Ironically, Kentucky's lawmakers chose this era to weaken our open records laws.

Secrecy is the cancer on state and local government that spreads mistrust. This includes the secrecy that surrounded the introduction of HB 312 as a committee substitute to "An Act relating to financial institutions."

The cure is less — not more — secrecy. While HB 312 incorporates much-needed email requirements, it discourages the public from making open records requests and holding Kentucky's public agencies accountable. More amendments are needed to prevent HB 312 from posing an even greater threat to the public's right to know.

Here are some of the reasons we oppose HB 312:

• "Resident only" requirements for using open records laws will not achieve the stated goal of alleviating the "burden" on public agencies by out-of-state requesters.

The solution already exists in the open records law. The law authorizes public agencies to deny requests that are unreasonably burdensome and to impose fees on commercial requesters that correspond to the value of the records.

The residency requirement, even as amended, burdens public agencies with new statutory obligations, erects absolute barriers to Kentucky records for nonresidents with critical needs, and creates delays and obstructions for Kentucky residents. Like other states, Kentucky will learn only after it is too late that the importance of our public records does not end at the state line.

• Insulating the General Assembly and Legislative Research Commission from accountability by eliminating independent review of denials of public records requests is an insult to the public and a breach of public trust.

The public elected the members of the General Assembly and support it through their tax dollars. The law favors disclosure of public records, provides limited exceptions that permit nondisclosure, and mandates independent review where records access disputes arise. Although the Constitution and existing open records exceptions protect the independence of legislators in communications relating to their duties and with their constituents, eliminating review of denials shields other records of legislators from the same "inconvenience or embarrassment" every other Kentucky public agency must and should accept.

Public servants are stewards of the public trust as well as the public's records. The lack of discussion regarding needed changes to the bill, including but not limited to the legislative component, signal the abandonment of any pretense that HB 312 — even as amended — does no injury to the public's right to know. If we fail in our duty to the public, there may be no recourse. Lawmakers must be accountable to the public they represent.

Please call 1-800-372-7181 to leave a message for legislators. Your voice must be heard.

Sen. Adrienne Southworth, R-Lawrenceburg, represents the 7th district, which encompasses Anderson, Franklin, Gallatin, Owen, and Woodford counties. She serves as a member of the Senate Standing Committee on State & Local Government, the Program Review and Investigations Committee, and the Budget Review Subcommittee on General Government, among others. She can be reached at Adrienne.Southworth@lrc.ky.gov

Amye Bensenhaver is a former assistant attorney general who reviewed open records and open meetings for 25 years, authoring decisions, responding to inquiries, and making presentations. She is now co-director of the Kentucky Open Government Coalition, a bipartisan, grassroots group established in 2019 to provide a citizen's voice on issues pertaining to Kentucky's open government laws. She can be reached at missbhaver@gmail.com