SB 201 — an act relating to open records sponsored by Sen. Adrienne Southworth and introduced to the Senate on February 9 — does no harm. It also does no appreciable good.
https://apps.legislature.ky.gov/record/21rs/SB201.html
The bill makes no substantive change to the existing open records law. Suspicious minds wonder if it might be a placeholder for substantive changes to come.
SB 201 adds to KRS 61.880(4). This statute recognizes the public's right to appeal to the attorney general "subversion of the intent of the open records law, short of denial of inspection" of an open records request.
https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=23065
KRS 61.880(4) currently includes, but is not limited to, two examples of the types of conduct constituting subversion of the law's intent: the imposition of excessive fees and the misdirection of the applicant. Other examples that do not appear in KRS 61.880(4) include an agency requirement that the requester use the agency's open records form as a condition to obtaining public records or an agency's inability to produce public records because the records were mismanaged or prematurely destroyed.
To this non-exclusive list Southworth's bill adds: "delay past the three (3) [business] day period [for public agency response to an open records request], [and] excessive extensions of time."
If SB 201 is enacted, KRS 61.880(4) will provide:
"If a person feels the intent of KRS 61.870 to 61.884 is being subverted by an agency short of denial of inspection, including but not limited to the imposition of excessive fees, *delay past the three (3) day period described in subsection (1) of this section, excessive extensions of time,* or the misdirection of the applicant, the person may complain in writing to the Attorney General, and the complaint shall be subject to the same adjudicatory process as if the record had been denied."
Open records appeals based on a public agency's failure to respond in three working days and to "excessively extend" the three working day deadline — ten days under them temporary modifications necessitated by COVID-19 and codified in 20RS SB 150 — are common.
They are regularly reviewed by the attorney general and the public agency's actions are regularly deemed a violation of the open records law, specifically KRS 61.880(1).
Southworth's bill will not change this. It will not expand the attorney general's jurisdiction in open records appeals, invest him with greater authority, or empower him to check this abuse.
Nor will it provide impetus to public agencies to honor the three business day — currently ten day — deadline for response.
It will have little to no net effect. But with weeks remaining in this session SB 201 could be amended or replaced by substantive changes that would negatively impact the law.
We will therefore continue to monitor the bill.
