A word about HB 520 sponsored by Rep. John Blanton (R-Salyersville). For the first time since 1994, proposed open records legislation addresses how public records and information is used, criminalizing dissemination under defined circumstances.

https://apps.legislature.ky.gov/record/21rs/HB520.html

We heard a lot about HB 520's predecessor, HB 141, a bill that generated controversy early in the 2021 legislative session.

https://apps.legislature.ky.gov/record/21RS/prefiled/BR985.html

Blanton quickly withdrew HB 141 amidst protest. These protests included our own.

https://www.facebook.com/419650175248377/posts/842304832982907/?d=n

https://www.courier-journal.com/story/news/politics/ky-general-assembly…

As we understood it, HB 141 was modeled on a New Jersey law referred to as Daniel's Law. That law took effect in November 2020 following the murder of US District Court Judge Esther Salas's son, Daniel Anderl, and the serious physical injury of Salas's husband, by an assailant who is said to have located Judge Salas's home address on the internet.

https://nj.gov/governor/news/news/562020/approved/20201120b.shtml

https://news-expressky.com/news/rep-john-blanton-prefiles-controversial…

Like New Jersey's Daniel's Law, Blanton's HB 141 declared confidential a judge's, a prosecutor's, or a police officer's "personally identifiable information," a term defined in the statute. It mandated removal of the information from any public agency website within 72 hours of enactment. It also criminalized dissemination — "secondary use" — of the information.

If the information was recklessly or wantonly disseminated (secondarily used), the disseminator was subject to both criminal and civil liability under HB 141.

But unlike Daniel's Law, Blanton's HB 141 included the judge's, prosecutor's, and police officer's first and last names in the definition of personally identifiable information.

This horrified open government advocates.

The ability to hold these public officials and employees accountable for their misdeeds, to report their successes or failures, even something as banal as the published announcement of an election, appointment, or hire, was threatened. Any "wanton or reckless" dissemination — even in the most innocuous context — was punishable.

"A person's name is personal but it is the least private thing about him," the Kentucky attorney general long ago observed. "The name of a person should not be deleted from a public record unless there is some special reason provided by statute or court order, for example, adoption records."

https://ag.ky.gov/Priorities/Government-Transparency/orom/1993/93ORD032…

Blanton withdrew HB 141 in early January. He filed a revised version of the bill, HB 520, on February 12.

Although we have been told that the new bill has momentum, it has not moved as of February 23.

HB 520 differs from HB 141 in several material respects. From our perspective, the most significant of these is the elimination of a judge's, prosecutor's, or police officer's first and last name from the definition of "personally identifiable information."

We took at close look at HB 520 in a recent post:

https://www.facebook.com/419650175248377/posts/861895964357127/?d=n

The list of what remains "personally identifiable information" is a long one, but with few exceptions, the remaining information has almost always been protected under the privacy exception to the open records law, KRS 61.878(1)(a).

An "exception to the exception" for home address has been recognized in cases where the law identifies residency as a condition of employment, appointment, or election. But home address has long been treated as exempt from public inspection since the information did "little to further the citizens' right to know what their government is doing and did not in any real way subject agency action to public scrutiny."

https://law.justia.com/cases/kentucky/court-of-appeals/1994/93-ca-00185…

HB 520 also shifts the burden to the judge, prosecutor, or police officer to request, in writing, that the agency designate his personally identifiable information confidential and remove it from its website. If enacted, public agency are not automatically required to remove the information within 72 hours.

This, too, is a substantial change from HB 141.

The criminal penalties for wanton, reckless, and now knowing, dissemination of the personally identifiable information by a "person" and now a "data broker" remain. So, too, does the civil remedy for foreseeable injury sustained as a result of dissemination.

HB 520 contains no statutory carve outs for the media or other groups often excluded from confidentiality provisions.

Looking at HB 520 from the pure "access" perspective, it changes little. As we've stated, the new definition of personally identifiable information — which now excludes the judge's, prosecutor's, or police officer's name — largely mirrors information that has been treated as exempt under the open records law privacy exception for decades and has therefore been inaccessible to the public.

But the open records law has, with rare exception, always been about access to records and information and not about records and information use.

This much is clear. If HB 520 moves, questions will be posed about its implementation. Objections are likely to be raised to the restrictions imposed on dissemination of personally identifiable information. The bill's "chilling effect" will have broad repercussions.

And, if the 1994 amendments to the open records law — treating commercial requesters differently than noncommercial requesters based on use — is any indicator, it may be challenged in the courts if enacted.

https://casetext.com/case/amelkin-v-mcclure-3

To date, HB 520 has not moved. No objections to the revised bill have been raised.

And although we remain concerned — certainly about the public's ability to confirm residency for certain public offices — but more broadly about unforeseen consequences, we recognize some improvements in HB 520 over HB 141.

Does this bill "belong" in the open records law?

No. It is confusing, cumbersome, and in conflict with the law's presumption of openness. It alters a fundamental precept of the open records law by criminalizing certain uses.

But no one seems interested in taking up the fight, and from the perspective of records *access*, it changes little.