What's next for Kentucky's open government laws?

The next major change in the laws will be the lifting of the temporary modifications to both open records and open meetings necessitated by the pandemic.

No more ten day deadlines for agency response to records requests. If/when, as expected, HB 312 becomes law, the deadline for response will be five business days.

No more video-teleconferenced/virtual meetings. In-person meetings will resume (though individual members will still be permitted to participate by video-teleconference under the provisions of KRS 61.826).

On or about June 29, the effective date of legislation enacted in 2021, the temporary open records and meetings modifications will lapse.

On March 30, 2020, Governor Andy Beshear signed into law SB 150, "An act relating to the state of emergency in response to COVID-19 and declaring an emergency." A few weeks before, on March 6, he issued Executive Order 2020-215, declaring that a state of emergency existed in the Commonwealth.

SB 150 addressed multiple exigencies, among them the logistical challenges of open records compliance by a public workforce working "remotely" and the health risks posed by traditional open meetings practices.

Under SB 150, the three business days deadline for agency response to open records requests was extended to ten days and agencies were permitted to "delay on-site inspection during the pendency of the state of emergency."

Agencies were also permitted to

conduct any meeting by live audio or live video-teleconference during the period of the state of emergency. If they exercised this option, agencies were required to provide special meeting notice for these meetings that included "specific information on how any member of the public or media organization can access the meeting."

By its terms, SB 150 provided that if the state of emergency declared by the Governor in Executive Order 2020-215 had not ceased "on or before the first day of the next regular session of the General Assembly, the General Assembly may make the determination."

The General Assembly did so in 2021's SB 1, stating that "The General Assembly, by joint resolution, may terminate a declaration of emergency at any time."

The Governor vetoed SB 1 on January 19, but that veto was overridden on February 2.

House Joint Resolution 77 (HJR 77) is the joint resolution envisioned by the General Assembly in SB 1. It was sent to the Governor on March 16.

It gets more than a bit confusing here.

HJR 77 contains an emergency clause and will take effect "upon its passage and approval by the Governor or upon its otherwise becoming law." It declares all COVID-19 related executive orders issued by the Governor that are not specifically extended by HJR 77 to be "of no further force or effect as of the effective date" of HJR 77.

It ratifies Executive Order 2020- 215 and declares that it will "expire 90 days from the effective date of this Act."

The temporary modifications to the open records and open meetings laws will cease on that day which will coincide with the effective date of new legislation — June 29, 2021 — or one to two days before depending on the date of HJR 77's passage.

(There may, in fact, be a one to two day period when the three business day deadline for response is restored only to be superseded by the five business day deadline for response mandated by HB 312. The interruption will have little practical effect.)

Suffice it to say that the ten day deadline for agency response to open records requests will end as will the video teleconferenced/virtual meetings to which we have become accustomed in the past year.

Agencies will no longer be permitted to "delay onsite inspection." And the preference for in-person meetings will be restored.

While other state legislatures considered new laws aimed at expanding public access to agency meetings by mandating both in-person and virtual meetings, Kentucky's lawmakers spent the 2021 session restricting public access to agency records in HB 312 and HB 273.

More on the HB 312 changes to the open records law when we are absolutely certain of the bill's fate.