SB 217, sponsored by Sen. Tom Buford (R-Nicholasville), expands the definition of "public agency" in the open records law to include "Any utility regulated by the Public Service Commission." It contains the caveat that "a utility shall be deemed a public agency under this section only for purposes relating to public records[.]"

In addition, it adds a new section to KRS 61.878. That section codifies the 16 exemptions to the open records law. It also includes a number of additional directives.

SB 217 will add a subsection stating that "No exemption in this section shall be construed to deny access to records of a utility relating to any expenditure of funds that have been or will be paid for by its customers."

Assuming the existence of other sources of public utility funding, the greatest logistical challenge to implementation of this bill, if enacted into law, will be the segregation of customer billing funds and tracing expenditures paid from these funds.

It is the same challenge that already exists in the "25% Rule" found at KRS 61.870(1)(h). That section of the definition of public agency extends to "Any body which, within any fiscal year, derives at least twenty-five percent (25%) of its funds expended by it in the Commonwealth of Kentucky from state or local authority funds. However, any funds derived from a state or local authority in compensation for goods or services that are provided by a contract obtained through a public competitive procurement process shall not be included in the determination of whether a body is a public agency under this subsection[.]"

Segregation of public from private funds and tracing expenditures from public funds has been a perennial challenge under the 25% Rule.

The most unusual feature of SB 217 is the barrier to use of any exception to the open records law to deny access. It is the only instance we know of that establishes an absolute disclosure requirement. No exceptions.

SB 217 was filed on February 26 and has not yet been assigned to a committee.