Can the current legislative attack on Kentucky's open records law be defeated?
https://apps.legislature.ky.gov/record/24rs/hb509.html
At least two states, Arkansas and New Jersey, prove that it can. But Kentuckians must organize opposition to House Bill 509 and unite in common cause to send a clear message to lawmakers in Frankfort.
https://www.nytimes.com/2023/09/14/us/arkansas-foia-huckabee-sanders.ht…;
https://newjerseymonitor.com/2024/03/14/controversial-bill-to-revamp-pu…
And while they are at it, Kentuckians should let Governor Andy Beshear know that they oppose the bill. Beshear recently voiced support for HB 509 in largely unreported comments at a press conference.
https://www.wpsdlocal6.com/news/gov-beshear-speaks-on-house-bill-to-cha…
https://kyopengov.org/blog/serious-doubts-about-hb-509-remain-despite-g…
A NEW PLAYBOOK
In Arkansas, "pushback was swift" to the radical changes to the Razorback State's Freedom of Information Law proposed by Governor Sarah Huckabee Sanders last fall as part of a September 2023 special session. Opposition "swell[ed] beyond organizations representing news organizations and government transparency advocates to include conservatives and some of the governor’s own supporters.
"In a moment when the country’s politics have become highly polarized, supporters of the legislation, perhaps unwittingly, seemed to run into a rare slice of common ground: distrust of the motives of government officials, and resistance to a plan that would allow them to operate with less scrutiny.
"'The power of the people was on display. People from all walks of life — left, right, Democrat, Republican, poor, rich, across the spectrum — came together to talk about the importance of our right to know.'"
Arkansas lawmakers listened -- enacting a substantially scaled down version of Huckabee Sanders' sweeping proposals to undermine state FOIA law -- most likely to permit the Governor to save face.
In mid-March, New Jersey lawmakers hit the brakes on a fast-moving bill aimed at overhauling the Garden State's Open Public Records Act following an outpouring of opposition.
"Testimony on the bill at two hearings lasted a combined seven hours with dozens of people testifying against it.
"After hearing the bill was yanked, critics waiting to testify in a Statehouse hearing room Thursday erupted in cheers and chants of: 'This is what democracy looks like!'"
(On March 19, The New Jersey Monitor reported that "[w]ork is underway on amendments
[, 'mostly clarification amendments,']to the controversial bill that would limit access to government data and documents in New Jersey."
"Clarification," in legislative vernacular, is often code for something even more pernicious.)
It's a new playbook for supporters of open government -- one that does not rely exclusively on press associations and open government advocates to protect state public records laws.
It can work -- but only if opponents, even those philosophically at odds on other issues, unite to oppose nearly annual legislative attacks on the public's right to know, only if opponents show up to voice their opposition, and only if the issue is not eclipsed by more compelling issues that dominate the public bandwidth.
HOW HB 509 THREATENS THE PUBLIC'S RIGHT TO KNOW
Let's be clear.
No one opposes the mandatory assignment of public email addresses feature of HB 509. Some may even be sanguine enough to believe that statutorily mandating that public servants use these public accounts, exclusively, to conduct the public's business, or risk "appropriate discipline," will eradicate for all time their use of private devices and personal email accounts to communicate about sensitive public business.
Many are not so sanguine.
The threat of criminal prosecution has not been sufficient to deter violations of the open records law in its nearly fifty year history. Why would the threat of "appropriate discipline" -- from an agency that likely benefited from the violation -- deter the prohibited conduct. And removal of a member, recent events confirm, is no easy feat.
https://www.lpm.org/news/2024-03-19/piagentini-says-louisville-metro-co…
Under KRS 61.991, a public official "who willfully conceals or destroys any record with the intent to violate" the open records law "shall be guilty of a Class A misdemeanor for each separate violation" and is guilty of contempt if s/he "fails to produce any record after entry of final judgment directing that such records shall be produced."
https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=23117
When was the last time a public official was prosecuted under KRS 61.991? Fifty years of open records disputes/litigation confirm that the threat of consequences -- even criminal prosecution -- is an ineffective deterrent.
Is it likely public servants will be deterred by the threat of "appropriate discipline" as determined by the public agency that, as noted, in many instances benefitted from their misconduct?
HB 509 places records exchanged on private devices and personal accounts entirely off limits by limiting agency search and production to "electronic information or documents" stored or contained in "an electronic device or system that is the property of, or under the control of, the public agency" or "an email account that is agency-furnished or agency-designated."
The prohibited use of private devices and personal accounts by public servants will become a unicorn -- hard to catch and impossible to find. Agency "self-policing" offers no reassurance.
If lawmakers are committed to securing transparency and protecting personal electronic privacy, they can achieve these twin goals by eliminating the current language found at Section (9) and substituting this language:
"[A] public agency
that complies with subsections (2), (3), and (4) of this section shall be required to conduct an adequate search for electronic communications, information or documents relating to public agency business stored on a public officer's, public employee's, commissioner's, or member's private device or personal account by requiring the owner of the device or account to search their private device or personal account and produce to the public agency's custodian of records all responsive electronic information, documents, and communications that are stored or contained on their private device or personal account for review and final agency response. The agency shall have no authority to compel the holder of the private device or personal account to surrender their private device or personal account to the public agency to fulfill an open records request and is expressly prohibited from doing so."
Any takers?
HEADLINES DEMONSTRATE THE DANGER
Two school systems have been sued -- one for open records violations and the other for open meetings violations -- based on the use of private devices and personal accounts to circumvent the laws.
Louisville Public Media yesterday announced a lawsuit filed earlier this week again the Jefferson County Public Schools in an open records dispute involving access to communications exchanged by top staff during the bus crisis on the first day of classes.
JCPS denied the existence of responsive records, asserting --among other things -- that the law "would not capture things like text messages sent on personal devices . . . which are generally how much of our staff communicates during real time, urgent situations.”
JCPS rejected LPM's position that a recent Court of Appeals' opinion -- favoring the public's right of access to public servants' emails and texts concerning public business conducted on their private devices and accounts -- governs this dispute.
https://law.justia.com/cases/kentucky/court-of-appeals/2023/2022-ca-017…
It is this case that is believed to be the impetus for HB 509 -- a point LPM makes:
"The public’s right to view such records in the future may be at risk in the Kentucky Legislature. House Bill 509 would create exemptions for public records stored on government officials’ personal phones or private email accounts."
In February, a group of concerned parents, Nelson County Forward, sued members of the Nelson County school board for open meetings violations arising from discussions of public agency business on the board members private devices.
The Lexington Herald Leader reports:
"In an Oct. 17 resignation letter, school board member Damon Jackey said there was a lack of professional leadership among other board members. He said there were 'unethical and potentially illegal actions by certain members of this board.'
"The school board’s former attorney Eric Farris said in a December resignation letter that a series of issues 'have brought me to the realization that continuing to represent the Board is not possible.' Farris said in the letter, 'I will not elaborate here but we are unable to reconcile our duty to the Board and certain ethical concerns.'"
https://www.kentucky.com/news/local/education/article286838000.html#sto…
(Lackey later confirmed, "Behind the scenes there's conversations happening between at least three board members, probably now four board members, that are making decisions out of the public eyes.")
https://www.wlky.com/article/nelson-county-parents-demand-transparency-…
A protracted battle for public records confirming private discussions of public business on school board members' private devices yielded "more than 1,000 emails and over 100 text messages sent on board members' personal devices."
https://www.whas11.com/article/news/local/nelson-county-school-board-la…;
In a hearing conducted on February 16, "attorney Matthew Hite, representing the parents who filed the suit, told the judge, 'The public's business should be done in public."
Excluding public servants's discussion of public business on private devices and accounts from public agency "search and production" in responding to open records requests on the thinly veiled pretext of protecting their electronic personal privacy" advances neither that stated purpose or the public's right to know.
https://kyopengov.org/blog/hopes-fade-lawmakers-and-advocates-reach-imp…;
Behind a facade of good government and enhanced accountability, House Bill 509 does immeasurable harm to the public's right to know by establishing what The Bowling Green Daily Times once described as "a codified way to evade watchdogs, both in the press and the general public."
https://www.courier-journal.com/story/opinion/2024/02/15/hb-509-kentuck…
Just ask Louisville Public Media and Nelson County Forward.
