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Jon Fleischaker and Michael Abate represent the Kentucky Press Association.

Kentucky Press Association opposes Senate Bill 63

By Jon Fleischaker and Michael Abate

KPA General Counsel

“Senate Bill 63 (RS BR 29) creates several new provisions that would dramatically alter the way the Open Records Act currently works.

“SB 63 is an unconstitutional proposal. It is a broadside attack on the First Amendment; violates the Due Process rights of Kentuckians; and will chill the ability of citizens and journalists alike to speak and write about their elected leaders and public servants. The bill’s poor drafting and internal inconsistencies create far more problems than they solve, leaving public agencies, journalists, businesses, and citizens unsure of what they can say or do concerning a wide range of public officials or any person related to them by blood, marriage, or law. That latter category of protected persons is so large and unknowable that this bill’s unintended consequences are impossible to overstate.

“SB 63 also will have profound and detrimental effects on the Commonwealth’s Open Records Act. It will conceal from the public basic information that has long been available—without incident—and is essential for citizens to oversee elected and appointed public officials paid with their tax dollars. It also will jeopardize the ability of businesses, agencies, and courts to perform routine public functions that depend on the free flow of information regarding public records concerning birth, death, marriage, insurance, property ownership, taxes, and political contributions. Anyone who is, or is related in any way to a peace officer, public safety officer, judicial officer, prosecutor, public defender, first responder, Cabinet for Health and Family Services investigator, county attorney, corrections officer, probation officer, jailer, juvenile probation or corrections officer, call center employee, administrative law judge, or hearing officer can demand that all such records be placed off limits to the public, imperiling routine commercial and legal transactions. This category of people entitled to these new protections is so broad and ill-defined it could include a substantial percentage of all Kentuckians—which means that agencies charged with implementing the bill will have no real way of knowing who is, and who is not, covered by its terms.

“Perhaps most troublingly, the bill would authorize, for the first time, personal financial liability (including punitive damages and attorney’s fees) for any person that disseminates information about these public officials and employees, or anyone related to them, even if that information does not come from public records. This is true regardless of whether that information is already in the public domain or whether the person who disseminated it had any way of knowing that the person suing them was even protected by the act (because, say, their cousin by marriage happened to be a administrative hearing officer). These substantial penalties will stifle—or punish—all manner of constitutionally protected speech, including essential investigative reporting on public agencies, and officials, and controversies.

“For all of its problems, this bill provides remarkably little—if any—benefit. The types of legitimately private information the bill covers already are exempt from disclosure under the Open Records Act. And if the General Assembly believes that certain, narrow types of information should be specifically exempted by statute—such as bank account information, social security numbers, or identities of minor children—that can easily be accomplished by amending the existing privacy exception in the Open Records Act to include that specific information. Such a change would extend those protections to all Kentuckians rather than just the favored few whom this bill seems intended to appease.

“Simply put, this bill is an affront to the Constitution and principles of open government. No legislator can support this bill and call themselves a champion of government transparency.”