We’ve all heard the adage, “No news is good news.” During Kentucky’s legislative session we annually add “but doubt persists.”
A handful of open records bills have yet to move in this session beyond committee assignment. Otherwise, there has been mercifully little open records or meetings legislation to arouse major concern. Nothing, that is to say, that dramatically alters the open government landscape in Kentucky.
To the outrage (and horror) of many across the Commonwealth, lawmakers’ attention has been directed elsewhere.
The Kentucky Open Government Coalition remains concerned about Sen. Whitney Westerfield’s SB 62, designated “The Personal Privacy Protection Act,” an ostensibly narrow legislative proposal — purportedly aimed at protecting personal information of donors to nonprofits — that swept out of the Senate by a vote of 31-3-1. It creates a new exception to public records inspection by declaring, “Personal information shall be exempt from disclosure under the Kentucky Open Records Act, KRS 61.870 to 61.884.”
If it’s purpose is as narrow as stated, lawmakers should clarify the bill by adding this phrase to the new statutory carve out:
“Personal information, •as defined in Section 1, sub (1)•, shall be exempt from disclosure under the Kentucky Open Records Act, KRS 61.870 to 61.884.”
This would, at least, ease likely conflict with longstanding interpretation of the privacy exception to the open records law relating to “information of a personal nature.” Again, we lament any new categorical exemption that opens the door to potential abuse, but this one seems likely to move forward.
Similarly, we question the addition of new and redundant exceptions to the open records law — like the new exception for lottery winner identities — the language of which is mirrored in the statutes relating to the lottery found in Chapter 154A of the Kentucky Revised Statutes.
These redundancies only serve to remind us of lawmakers’ exceedingly tenuous grasp of the purpose of the exceptions to Kentucky’s open government laws. It also reminds us of lawmakers’ commitment to flexing their legislative muscle by annually adding new exceptions to, and messaging tacit disapproval of, open government laws that have existed for nearly a half century.
And speaking of a tenuous grasp of Kentucky’s open government laws, this caught our eye recently.
HB 264, “an act relating to regulatory relief,” expands on existing “regulatory sandbox” laws in Kentucky. A House Committee substitute — broadly amending the original bill to establish the Kentucky Office of Regulatory Relief under the Office of the Attorney General — passed in the House 96-0 on February 28.
A “regulatory sandbox,” the venerable State Policy Network tells us, is “a legal classification that creates a space where participating businesses won’t be subject to onerous regulations—usually for a limited amount of time. The point is to allow these businesses to ‘play’ in the sandbox without regulations to see if innovative ideas and products can get traction and enter the market.”
A statutory scheme for a regulatory sandbox has existed in Kentucky since 2019, but this year lawmakers propose to create a new agency within the Office of the Attorney General known as the Kentucky Office of Regulatory Relief and to impose broad powers on the Attorney General.
The General Regulatory Sandbox Advisory Committee, organized under the Attorney General’s office, “is established for the purpose of advising and making recommendations to the Kentucky Office of Regulatory Relief concerning the implementation and administration of the General Regulatory Sandbox Program.”
Here is the open government rub. HB 264 inartfully states: “Meetings of the advisory committee shall not be subject to public disclosure pursuant to the Kentucky Open Records Act, KRS 61.805 to 61.850.”
Although at least some transparency is required in other states that recognize "regulatory sandboxes," secrecy is apparently the norm with regard to these laws.
The problem with HB 264 is that lawmakers purport to make the committee’s “meetings” “not subject to public disclosure” “pursuant to the Open Records Act” citing statutes governing the Open Meetings Act (“KRS 61.805 to 61.850”).
So which is it? Are committee records “not subject to public disclosure” under the Open Records Act — KRS 61.870 to 61.884 — or are committee meeting closed to the public under the Open Meetings Act — KRS 61.805 to 61.850. This is a semantic distinction with a major difference.
Someone either got a little sloppy in drafting the committee substitute or failed to cross check a statutory reference. This glaring error passed out of the House without notice.
Which leads us to ask: Do lawmakers know what they are doing?
Or do lawmakers know exactly what they are doing?
It’s likely a bit of both, but either way the prospect for Kentuckians is dim.