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March 27 meeting of the Senae State and Local Government Committee

This is a rant about House Bill 509.

This is not a calmly reasoned and dispassionate analysis of HB 509.

This rant about House Bill 509 is motivated by a growing awareness that Kentucky's lawmakers know very little about our open records law and even less about its value.

They cannot, therefore, present themselves as proper stewards, much less effective guardians, of the public's right to know.

If there was any doubt before the March 27 Senate hearing on House Bill 509, that doubt was quickly laid to rest. The tortured legislative history of this latest example of the General Assembly's annual assault on open government has returned us -- some 45 days, an adopted House committee substitute, seven House floor amendments, an adopted (then unadopted) Senate committee substitute, and three Senate floor amendments later -- to the place where we began when it was introduced on February 12. It returns us to a needless and destructive bill, premised on falsehoods and misrepresentations, that threatens to shake the open records law to its foundations.

To their credit, a few committee members focused on what the sponsors of HB 509 have conveniently chosen to ignore: the bill's failure to address texting -- the single most commonly used mode of communication. A bill that ignores texting, amendments that require agency installation of apps on public officials' and employees' private cellphones to capture public business related texts, and arguments that agencies can, individually and voluntarily, take additional and more onerous steps to preserve texts and make them accessible, ignore the obvious.

Texts relating to public business transmitted by public officials' and employees on private cellphones are, by definition, public records subject to the open records law. Two courts have reached this conclusion. It is this judicial interpretation of the open records law that necessitated the introduction of HB 509, a codified mechanism for evading public agency watchdogs.

In the end, the objections raised by a few senators in the March 27 committee persuaded the committee to "unadopt" a last minute committee sub that did even greater damage to the open records law -- and the public's right to know -- than the version of HB 509 that had emerged from the House of Representatives.

Some senators, expressing concern for the sanctity of their own cellphones, appeared unaware that because the General Assembly statutorily excluded itself and the Legislative Research Commission from the open records law in 2021, House Bill 509 is inapplicable to them or their personal cellphones.  Some seemed to think that existing exceptions to the open records law -- like the attorney client privilege --  are unavailable if the protected information appears in a text.

They even shaved nearly two decades off of the open records law's 48 year lifespan.

The sponsor himself stumbled. In response to a press question about another feature of the failed committee sub, he suggested that the definition of "public agency" has nothing to do with the definition of "open record." He was unaware that there is no definition of "open record" in the law -- an "open record" is any "public record" that is not shielded from public  access by one of the 18 statutory "exceptions." In fact, the definition of "public agency" has everything to do with the definition of "public record" since the latter is defined as "documentation regardless of physical form or characteristics, which is prepared, owned, used, in the possession of or retained by a public agency."

But the most deeply disturbing comments came from Senator Damon Thayer (R-Georgetown) who dismissed the hubbub surrounding the issue of public discussions on private devices in comments following the meeting.

Lexington Herald Leader reporters Tessa Duvall and Austin Horn wrote:

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

“'I’ve got my private phone,' he said. 'I run my businesses, and when I was running my campaign, and all my friends, and I don’t think the public needs to know about those communications.'

“'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?'"…

Unfortunately for Thayer, there are those of us who remember that it was he who attached so much importance to this issue in 2018 that he unsuccessfully introduced a bill to amend the definition of "public record" to exclude, emails or texts sent or received by a device "that is paid for with private funds."…

The resulting compromise -- a new exception for "Communications of a purely personal nature unrelated to any governmental function," coupled with the existing exception for "Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy," as well as the existing exception for "correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency" should satisfy any legitimate concern that the public is coming for officials' personal cellphones or the private messages they contain.

But the statement that there is no valid public interest in public business being conducted on private devices and accounts is a direct affront to foundational principles of open and accountable government and the sanitizing effect of the laws that support it.

To Thayer's "38 big things" we respond: preserving Kentucky's open records law is at least as big as any of his "things."

During the March 27 committee meeting, some senators seemed anxious to secure opponents' approval of a version of HB 509 that was not as bad as HB 509 with Senate committee sub. Opponents welcomed the "unadoption" of the Senate sub, but held firm on their opposition to the giant loophole HB 509, as it emerged from the House, creates.

The consensus among opponents, to paraphrase departing Representative Josie Raymond (D-Louisville): "Not good is still not good enough."

We hope that lawmakers will acknowledge the need to back away from HB 509 and pass it to the interim for further study if, in fact, their is a real need. We fear that they will dig in their heels and enact this and future laws undermining the open records law -- despite its remarkable resilience, its clear application to email, texts, and other forms of messaging under the current definition of "public record," and its existing provision for effectively protecting both personal privacy and the public's right to know.

Statements about the law that indicate otherwise -- made by elected representatives in the cynical confidence that they can not be doubted -- are false and fundamentally deceptive. The fact that they continue to assert these claims compounds their offense.

One thing is certain, lawmakers who know so little about the requirements of the open records law, much less it's necessity and value -- or who are willing to justify needless and destructive revision of the law with false claims and misrepresentations -- cannot be entrusted with the future of the law.


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