A seemingly innocent bill may represent a threat to the Kentucky Open Records, and perhaps even the Kentucky Open Meetings, Acts.
HB 443 establishes an exception to the Open Records Act for client files maintain by the Department of Public Advocacy and its contractors.
DPA provides "legal representation to indigent persons of all ages, accused of crimes or facing a deprivation of liberty."
If enacted, the exception would parallel an existing exception for prosecutors' criminal litigation files.
That exception, enacted in 1992, "was clearly intended to shield prosecutors not only from disclosures potentially harmful to their informants or their prosecutions but from the cost, inconvenience, and disruption that compliance with the Act would visit upon their offices in particular."
https://caselaw.findlaw.com/ky-supreme-court/1653243.html
The proposed exception would level the open records playing field for county/Commonwealth's attorneys and public criminal defense attorneys.
The sponsor of 20 HB 443, Representative Jason Petrie, R-Elkton, sponsored the same exception in 2019. It was the least threatening exception of the many new exceptions he proposed in 19 HB 387.
https://apps.legislature.ky.gov/record/19rs/hb387.html
Rep. Petrie's original 2019 bill modified the terms and expanded the scope of the decades old open records exception for records confidentially disclosed to a public agency that are generally recognized as confidential or proprietary if disclosure would permit an unfair advantage to competitors of the entity that disclosed them (KRS 61.878(1)(c)1. and 2.).
Shortly after he filed the bill, Rep. Petrie introduced a series of amendments that included the exception for public advocate client files and:
• added new exceptions ostensibly aimed at promoting economic development, including unsuccessful incentive packages (like the failed Louisville Amazon bid package) and investor identity (like the investors in Braidy Industries);
• modified and broadened the preliminary documents exception to permit agencies to withhold preliminary records unless they are "incorporated" into final agency action (KRS 61.878(1)(i) and (j));
• modified and expanded the exception for records relating to prospective locations of businesses in Kentucky (KRS 61.878(1)(d));
• introduced "attorney client work product" (actually two distinct concepts relating to distinct records sets generated by attorneys representing clients) as a new exception;
• insulated legislative records to which LRC denies access under its version of the open records law (KRS 7.119) from judicial review — KRS 7.119 already excludes LRC denial of requests for legislative records from attorney general review — making LRC the final arbiter of access to it's public records; and
• established a "residents only" requirement for use of the KY open records law.
HB 387 met with substantial opposition in 2019 and was not enacted.
The impetus to legislatively "correct" — in this case abridge at the public's expense — the law is even greater in 2020 than in 2019.
Recent judicial interpretation of the preliminary documents exceptions, the scope of the attorney client privilege and work product doctrine, and judicial review of LRC denial of access to legislative records is at odds with the new or expanded exceptions Rep. Petrie sponsored in 2019.
http://opinions.kycourts.net/COA/2017-CA-001423.pdf
https://casetext.com/case/harilson-v-shepherd
Moreover, there is a strong push for a "resident users only" provision of the open records law by the Kentucky League of Cities. The League has also proposed the modification of an exception to the open meetings law for the acquisition or sale of real property by a public agency.
https://www.facebook.com/419650175248377/posts/561739291039464/?d=n
It is by no means clear whether Rep. Petrie intends to introduce these or any other exceptions as amendments to 20 HB 443.
But if not Rep. Petrie, another legislator might.
We should therefore keep a close eye on HB 443 as it proceeds through the House. The bill may be expanded to include some or all of the 2019 modifications/ exceptions and perhaps more modifications/exceptions.
Or HB 443 may pass out of the House without amendment and undergo amendment in the Senate.
Clearly, there is some support for narrowing the public's existing rights under the Open Records and Open Meetings Acts. It is therefore critical that any new or modified exception be rigorously vetted to ensure that the public's rights are not abridged.
