As dangerous storms dissipate and healing rain descends on Sunshine Week 2024, news reaches us that Kentuckians have nothing to fear from House Bill 509. All is well.

Or is it?

WPSD-6's Melanie-Antonitis reports that Governor Beshear has offered his assurance that "his staff helped write" parts of House Bill 509 and that open government advocates are wrong about the salutary bill. 

https://www.wpsdlocal6.com/news/gov-beshear-speaks-on-house-bill-to-cha…;

https://apps.legislature.ky.gov/record/24rs/hb509.html

House Bill 509 "isn't some big loophole where people can hide things," the Governor maintained in a Thursday news conference. "I believe that this will allow searches outside of the individual in question from the organization, from the cabinet, from the board and through their general council that will provide more records, not less."

Once again, I am perplexed. 

Saying it does not make it so, Governor. Pardon me if I am less than reassured by the knowledge that your staff -- some of whom I know well from past experience -- helped write it. 

Frankly, I have no earthly idea what you are trying to say. 

Okay, I get it. You are in favor of changing Kentucky's open records laws. I suppose I would be too if executive branch agencies operating under my authority had such a consistently bad track records for obfuscation, delay, and denial.

https://www.kentucky.com/news/politics-government/article283778023.html

In late February, the Kentucky Attorney General determined that Beshear's office itself violated the open records law when it denied as "too imprecise and "too burdensome" a request that was "sufficiently specific for the agency to conduct the statutorily required search."

https://www.ag.ky.gov/Resources/orom/2024-OROM/2024/24-ORD-048.pdf

The Attorney General was correct. And it was not the first time. 

What is a "search outside of the individual in question" to which the Governor refers? How does HB 509 "allow searches outside of the individual in question from the organization, from the cabinet, from the board and through their general council?"

Try as I might, I cannot make sense of this.

HB 509 requires assignment of agency-furnished or agency-designated email accounts to public officers and employees "for the purpose of conducting the business of the public agency."

HB 509 prohibits public officers and employees from using "an email account other than an agency-furnished email account or agency-designated email account to conduct the business of the public agency."

HB 509 stipulates that an officer or employee who violates this requirement "shall be subject to appropriate discipline."

With the exception of the threat of "appropriate discipline" for failure to comply, these provisions codify what should be current practice across state and local government. 

To this extent, the Governor and I can agree:  HB 509 does no harm. 

But assignment of public email accounts with directions to officers and employees to use them or risk discipline does not miraculously put an end to what should not be, but all too often is, current practice across state and local government: public officers and employees' use of private devices and accounts to conduct public business to avoid open records laws and the glare of public oversight. 

On the unverified, and thenceforward unverifiable, theory that codification of these requirements will preternaturally terminate every public officers and employees' temptation to use private devices and accounts to communicate about public business, HB 509 absolves a compliant public agency of the duty to conduct a search beyond the first and most obvious place responsive records are likely to be found:

"(a) An electronic device or system that is the property of, or under the control of, the public agency; or

(b) An email account that is an agency-furnished or agency-designated email account."

Those pesky communications about agency business exchanged by public officers or employees on private devices or accounts -- often the most candid and telling communications of all -- are off limits under the bill not because of their content but because of the places they are conducted and the resulting records stored. 

Don't ask; don't tell. Impunity is yours. 

Compare, https://vtdigger.org/2017/10/20/vermont-supreme-court-private-emails-pu…

https://www.cbsnews.com/amp/sanfrancisco/news/california-supreme-court-…

https://www.aclunc.org/blog/those-personal-email-accounts-if-its-offici…

https://tcog.info/government-emails-private-accounts-how-to-comply3007/

https://www.rcfp.org/court-rules-foia-can-apply-private-email-accounts/

Either the Governor is extremely naive, extremely cynical, or extremely delusional. 

Perhaps he said something -- anything -- more plausible than "this. . . will provide more records, not less" that went unreported. Standing alone, his reported defense of HB 509 is not convincing -- much less reassuring. 

Under no set of facts will the vastly circumscribed search mandated under HB 509 "provide more records, not less."

HB 509 implicitly codifies the loophole the Governor casually dismisses.

You can talk about "searches from the organization, from the cabinet, from the board and through their general council that will provide more records, not less," Governor Beshear, but the ability -- as well as the duty -- to conduct those searches has always existed. That's no net gain. 

Codifying out of existence the agency duty to conduct a search that extends to public officers and employees' private devices and accounts provides impetus for officers and employees to go off the reservation to evade scrutiny as never before. 

(And again, I repeat, by "search" I mean retrieval of responsive communications located on private devices or accounts by the owner of the device and account for submission to, and review by, the agency's records custodian -- not compulsory surrender of the private device or account to the custodian to fulfill the open records request.)

A "loophole to hide things" is precisely what HB 509 is. There is no other word that better describes the threat at the heart of the open government crisis HB 509 poses. 

And even the Governor cannot, by his confusing words, change that.