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Tweeted portion of. Hodgson newsletter

Rep. John Hodgson remains determined to secure passage of his "somewhat controversial" open records bill, HB 509. In a recent newsletter, he insisted that the bill is "absolutely necessary if we hope to continue to attract good citizens to be involved in government at at levels, especially in the 10,000+ unpaid board positions."

Rep. Hodgson characterization of the bill as "somewhat controversial" ignores the vigorous opposition to HB 509 from right leaning and left leaning advocacy groups and citizen activists across the Commonwealth and across the political spectrum. He continues to advance the unfounded claim that HB 509 is a public employment recruitment tool based on the unsubstantiated position that current law deters applicants.

Following heated discussion, "unadoption" of an adopted committee sub that did even greater damage, and a narrow 6-3 vote, HB 509 emerged from Senate committee on March 27.

Hodgson admitted -- in response to questions from reporters after the meeting -- that he knows of no case where a public servant was required to "surrender" a private cellphone. Not one.

From The Kentucky Lantern:

"After the meeting, Hodgson told reporters that he was unaware of any incident in which a public official’s personal emails or texts were publicly released because of an open records request He said his legislation is 'proactive.' He also said that there are 'always unintended consequences' with legislation and that he believes in the open records process."……

It appears Rep. Hodgson is willing to cut a broad swath through the public's statutory right to know as a "proactive measure" addressing a nonexistent threat. Given his willingness to perpetuate the myth that applicants seeking public employment, and candidates for "volunteer" membership on boards and commissions, are deterred by this phantom threat, we question whether the referenced "unintended consequences" -- which have been plainly spelled out to him on several occasions -- are "unintended" at all.

In addition, Rep. Hodgson has not identified a single board or commission that has run short of candidates due to candidates' galloping paranoia that they will be compelled to surrender their personal cellphones to fulfill open records requests. Not one.

If there are applicants for public employment that are deterred by this base misrepresentation of existing open records law requirements -- or candidates for appointment to boards or commissions who are discouraged, even in general, from offering their time and energy in "voluntary" service to a board or commission -- we say "NEXT!"

A public servant -- yes, even a "volunteer" -- steps out upon the public stage in discharging their public duties and serving the public's interest. Certainly, they have a long-recognized right to their private lives. No one wants, has requested, or has a right to that public servant's private communications or demanded the surrender of a personal cellphone.

Hodgson continues to focus on the purported "fault line where the public’s right to know bumps up against an individual’s right to privacy,” ignoring -- first and foremost -- that mandatory surrender of personal cellphones is an epic Lie.

Our 48 year old open records law has consistently demonstrated its resilience and adaptability to "modern" times. It has never mandated -- nor can it be interpreted to mandate -- surrender of a public servant's personal cellphone.

That is the enduring value of a well-drafted and carefully vetted law.

He also ignores the fact that -- where the law applies to public records that contain information of a protected personal nature -- it  extends protection to that information in three separate statutory exceptions authorizing nondisclosure:

• KRS 61.878(1)(a): Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy;

• KRS 61.878(1)(i): Preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency; and

• KRS 61.878(1)(s): Communications of a purely personal nature unrelated to any governmental function.

But that information would only fall into agency hands if the owner of a private device -- when asked for public records responsive to an open records request that might be located on the device -- recklessly forwarded personal communications to the agency records custodian along with responsive public records. At that juncture, the custodian could, would, and should fall back on the referenced exceptions to withhold the personal communications.

Yet even in this highly unlikely scenario (experience teaches us that respondents to an open records inquiry tend toward under-inclusion rather than over-inclusion), Rep. Hodgson would have us address a nonexistent fault line in favor of government secrecy.

Sen. Damon Thayer's statements to reporters at the conclusion of the committee meeting more accurately reflect the position of many in the legislative majority.

For The Lexington Herald Leader, Tessa Duvall and Austin Horn described that exchange:

"Speaking to reporters Tuesday, Majority Floor Leader Damon Thayer said HB 509 said, 'he has no concerns about officials conducting public business on private devices.

“'Why are you guys so interested in what’s on our personal cell phones?'

"Thayer disagreed that it’s valid to be interested in public business being conducted on private devices and accounts. 'I don’t want anyone to have access to my personal cell phone,' he said. 'It’s just amazing to me that this becomes a big issue with you guys every session there’s, like, 38 big things still left to do. And you’re asking me about this bill?'"

We ask because Thayer is an elected official charged with representing his constituents' interests -- which he proceeds to callously repudiate.

A reminder to the departing Senator, preserving the open records law and the public's right to know --  which you so scornfully dismiss -- is a "big thing."

Not long after the excerpt from Hodgson's  newsletter appeared on Twitter, Lexington Herald Leader Politics and Public Affairs Editor -- formerly Herald Leader Frankfort Bureau Chief -- Tessa Duvall identified "[a] couple of recent examples of how text messages can be used to promote - or obscure - government accountability:"

• Louisville Metro text messages relating to Mayor Greenberg's wife and her interaction with Metro government employees in her "volunteer" role;…

• Emails and texts exchanged by officials of Jefferson County Public Schools on August 9 when the system experienced a major transportation crisis………

If indeed potential public servants shun the disinfecting rays of Kentucky's Sunshine Laws, they should go to the end of the line -- or, better yet, head for the nearest exit.

But they needn't forego public service because a duplicitous public official sold them a bill of goods about mandatory surrender of their personal cellphone under existing open records law.

Let each candidate for service on a board or commission and every applicant for public employment examine their conscience. If public accountability is too much to ask, they are unfit for public service -- as are those who perpetuate the Lie of mandatory personal cellphone surrender for no other purpose than to justify a codified "legal" mechanism for evading public and media watchdogs.


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