In these unhappy times, it should be noted that there are two bills—one moving, one stalled—that make us happy.
These bills would enhance the public's rights under the open records law and ensure the free exercise of those rights without the fear of government retaliation.
The bill that is moving is SB 201, sponsored by Sen. Adrienne Southworth (R-Lawrenceburg). The bill that is stalled is HB 132, sponsored by Rep. Nima Kulkarni, (D-Louisville).
SB 201: A FRONTRUNNER
Southworth's bill does exactly what she set out to do. It codifies the public's right to appeal public agency "delay past the three (3) day period" for public agency response to a records request, as well as "excessive extensions of time" in producing public records.
https://apps.legislature.ky.gov/record/21rs/sb201.html
Under Southworth's bill, this is expressly deemed a "subversion of the intent of the law short of denial of inspection" that is appealable to the attorney general under KRS 61.880(4).
https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=23065
SOUTHWORTH'S SIMPLE SOLUTION
More importantly, in our view, is Southworth's solution to the problem of mandatory acceptance of emailed open records requests. We thought that problem was solved in 2019.
Alas, no.
Sen. Wil Schroder's attempt to require public agencies to accept emailed records requests was an abysmal failure. It actual reduced the legally permissible methods of transmitting requests that he sought to expand.
Southworth's solution is simple, clean, and incapable of misinterpretation. Happily, Schroder has signed on to the correction.
The introduction of one word, "emailed," in the existing statute that provides, "The written application shall be hand delivered, mailed, [emailed], or sent via facsimile to the public agency," solves the problem (as long as the added language from Schroder's legislative stumble is eliminated).
https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=48750
What could be simpler?
Don't ask the drafters of HB 312. They propose a confusing process by which agencies include email transmission of records requests in their statutorily mandated—but rarely adopted—rules and regulations governing access to agency records.
https://apps.legislature.ky.gov/record/21rs/hb312.html
One might almost suspect that HB 312's sponsors prefer to avoid mandatory acceptance of emailed records request for a few more years.
Schroder's 2019 was a misfire. Southworth's SB 201 hits the target. As a freshman senator, she must be commended for a clarity of thought and expression that puts veteran lawmakers to shame.
HB 132: NEVER GOT OUT OF THE GATE
Those same lawmaker should also be ashamed that they have refused to assign Rep. Nima Kulkarni's anti-SLAPP bill , HB 132, to a committee. SLAPP Is the abbreviation for "Strategic Lawsuit Against Public Participation." Anti-SLAPP bills have been adopted across the country.
https://apps.legislature.ky.gov/record/21rs/hb132.html
But not in Kentucky.
Kulkarni's laudable bill, aimed at discouraging retaliatory public agency lawsuits against citizens who exercise their rights to criticize or question these agencies, is unlikely to be heard.
Don't think this happens in Kentucky? Ask Lawrence Trageser, a Spencer County "watchdog" and vocal critic of city and county government. In 2017, the City of Taylorsville sued Trageser for compensatory and punitive damages in an action based, in part, on his open records requests.
https://cases.justia.com/kentucky/court-of-appeals/2020-2019-ca-000152-…
Shame on lawmakers. They have already shown their hostility to the open records law in this session by introducing multiple new exceptions—and, of course, the capper: HB 312.
THE BILLS THAT WILL FINISH OUT OF THE MONEY
SB 48, sponsored by Sen. Danny Carroll (R-Paducah) creates an exception for address and location of "public officers," a broadly defined group of officials and employees. Assuming address and location only refers to the officer's *home* address and non-work location, this bill does little to change the existing open records landscape.
https://apps.legislature.ky.gov/record/21rs/sb48.html
Unless residency is a requirement for employment, the public's interest in disclosure of home address and home "location" is already protected by the privacy exception to the open records law.
SB 48 is moving.
Rep. John Blanton' HB 520, is, in a word, a mess. It must have been drafted by the same staffer who drafted Schroder's 2019 email request bill. But the Salyersville Republican expiated a multitude of sins when he eliminated from the definition of statutorily protected personally identifiable information the first and last name of the judges, prosecutors, and police officers HB 520 is intended to protect.
https://apps.legislature.ky.gov/record/21rs/hb520.html
There's a lot to unpack in HB 520âa lot that will outrage "data brokers" and others—but from a strict open records perspective, it again protects personal information that is already exempt under the open records law's privacy exception.
Blanton's original bill, HB 141, was scratched. HB 520 stumbled out of the gate but may get back in the race.
AND A LESSON FOR LAWMAKERS
This session has seen it all. And there may be more to see.
But the organized opposition to "unneeded and unwanted" amendments to the open records law—epitomized in HB 312—puts public officials on notice.
The public is grateful to lawmakers who seek to protect and even enhance its rights under the open records law.
And the public won't surrender to lawmakers who seek to abridge its rights under the open records law without a fight.
