Not long ago I spoke with a retired Legislative Research Commission staffer about the genesis of Kentucky’s open meetings and open records laws in the 1970s.
The first question the retired staffer asked me was whether the General Assembly ever passed the “legislative exemption” to the open records law.
Sadly, I informed the staffer that it had — just last year, in fact — though efforts began in earnest in 2019 and were temporarily stalled by the pandemic in 2020.
https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=51395
If a public agency warranted oversight, I added, it was the General Assembly and its administrative arm, the Legislative Research Commission. This is not just because that august body makes laws for the Commonwealth — including the open records and open meetings laws by which it imposes the statutory duty on all other state and local public agencies to make their functions and operations transparent — but because legislative records grudgingly disclosed in the past have confirmed a pattern of gross, irresponsible, and, in some cases, illegal behavior that shocked even the most cynical.
https://www.nytimes.com/1993/09/19/us/with-leaders-leaving-office-for-j…
The retired staffer agreed.
Nevertheless, the “legislative exemption” from the open records law — vetoed by Governor Andy Beshear as part of a 2021 open records bill package that included the ignominious “residents-only” requirement — easily survived the Governor’s veto and ultimately passed by a vote of 66-29 in the House and 22-16 in the Senate.
https://apps.legislature.ky.gov/record/21rs/hb312.html
The Kentucky Supreme Court left the General Assembly with no alternative when, in 2019, it rejected lawmakers’ attempts to evade oversight in Legislative Research Commission v Lexington Herald-Leader.
http://opinions.kycourts.net/sc/2019-SC-000156-MR.pdf
What — cynically — did lawmakers leave Kentuckians with on the nonsensical pretext advanced in 2021 that they must shield what was in most cases already protected constituent communications from public disclosure?
• A narrow definition of publicly accessible legislative “records”
The 2021 law restricts publicly accessible records to "bills and amendments introduced in the Senate or House of Representatives, Senate and House Journals, Acts of the General Assembly, roll call votes, final reports of committees, Kentucky Administrative Regulations, documents showing salary and expenses paid to members of the General Assembly and all employees of the legislative branch, contracts, receipts and work orders for repairs or renovations to legislative offices or facilities, items cataloged in the legislative library, the Legislative Record, and informational and educational materials offered by the public information office, including legislative videotapes and photographs, calendars, and meeting notices.
In other words, records that are largely accessible on the LRC website can also be obtained through an LRC-style records request. If the requested records do not fall within this definition, “those records shall not be subject to disclosure.”
No exceptions are needed because access to every other legislative record is expressly excluded.
• “Appeal proof” authority to deny records requests
Having ostensibly moved from money to sex after BOPTROT, the General Assembly divested the Kentucky Attorney General of authority to review denial of legislative records access in 2003. By no coincidence, this was one year after the Franklin Circuit Court ordered disclosure of investigative files in the Kent Downey House of Representatives prostitution and gambling scandal.
https://apnews.com/article/eeee39017bdd5a006727eceb9ebf2627
https://apps.legislature.ky.gov/record/03rs/SB213/bill.doc
More scandals — and more failed attempts at accessing legislative records — followed, culminating in the 2019 Kentucky Supreme Court opinion declaring that the courts had jurisdiction to review LRC’s denial of access to records relating to allegations of sexual harassment against another state representative — and rejecting separation of powers arguments and claims of legislative immunity — under then current law found at KRS 7.119.
https://kycir.org/2013/09/25/in-kentucky-legislature-lax-rules-govern-w…
https://kycir.org/2019/01/17/kentucky-legislative-leaders-respond-to-se…
https://www.amnews.com/2019/10/01/supreme-court-strikes-blow-for-open-g…
What do lawmakers do when the courts’ interpretation of the law gets in the way? They amend the law to remove the courts from the equation.
Following a failed 2019 attempt, and a “year off” for COVID, lawmakers amended KRS 7.119 to do just that in 2021.
https://apps.legislature.ky.gov/record/19rs/HB387.html
https://www.courier-journal.com/story/opinion/2019/03/06/kentucky-open-…
Current law provides a mechanism for appeal to the Legislative Research Commission — a 16-member statutory committee made up of the majority and minority party leadership of the Senate and House that apparently meets on an “as needed” basis — but precludes an appeal to the courts.
https://legislature.ky.gov/LRC/Pages/default.aspx
“A request for a review of any determination by the [LRC] director regarding a request for records shall be made to the Legislative Research Commission, which shall issue its decision within thirty (30) days of the first scheduled meeting held following receipt for review. If the Legislative Research Commission does not issue its decision on a review of the director's determination within thirty (30) days of the first scheduled meeting held following receipt of the request for review, the review shall be considered denied.”
Lest there be any doubt:
“A request for review of the denial of the disclosure shall be made to the Legislative Research Commission, which shall issue its decision within thirty (30) days of the first scheduled meeting held following receipt of the request for review. That decision shall be final and unappealable.”
https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=51395
The Kentucky Open Government Coalition tried it in September 2021.
https://kyopengov.org/blog/kentucky-open-government-coalition-today-joi…
We got nowhere.
https://kyopengov.org/blog/if-youve-wondered-what-chance-success-appeal…
In a December 2021 post, we wrote:
“After we filed our September 2 appeal to ‘the Commission,’ we waited.
“Our patience was rewarded on November 10, when ‘the Commission’ conducted a meeting that lasted just over three minutes. ‘The Commission’ took no action on our appeal. The subject of our appeal was never raised.
https://www.youtube.com/watch?v=sY-6aeNueik
“Again, we waited.
“The new law does not require ‘the Commission’ to ‘issue its decision on a review of the director's determination,’ but if it fails to do so ‘within thirty (30) days of the first scheduled meeting held following receipt of the request for review, the review shall be considered denied.’
“Thirty days having elapsed since ‘the Commission's’ November 10 meeting, our request for review is ‘considered denied.’
“And here's the kicker. The new law is equally clear that ‘the Commission's’ ‘decision [or in our case, it's nondecision] shall be final and unappealable.’”
https://kyopengov.org/blog/if-youve-wondered-what-chance-success-appeal…
Just a reminder that “the General Assembly is not only loath to observe the records access laws it enacts for all other state and local public agencies, it is also loath to observe the records access laws it enacted for itself.”
One can only imagine the never to be uncovered misdeeds regularly occurring behind closed office doors in the ever expanding legislative halls of the Capitol and the Annex.
Still worse, lawmakers contempt for oversight of their own conduct portends future threats to open government across the Commonwealth through statutory amendment aimed at undermining foundational rights and duties under existing law.
(Editorial cartoon courtesy of The State Journal, Dec 29, 2021)
