By Amye Bensenhaver
In an era when virtually every public official gives lip service to the importance of transparency and accountability, what is it that motivates a legislator to introduce a bill that abridges these twin goals?
What, indeed, when our time-tested open records law strikes a reasonable balance between the need for public oversight of governmental operations and the competing need for governmental confidentiality.
Twice last week open government proponents asked this question. On Feb. 13, Senator Danny Carroll, R-Paducah, filed SB 193. That bill, which innocuously inserts gender-neutral language into a rarely invoked provision of the open records law, is widely believed to be a “placeholder” for refiling SB 14.
SB 14 was widely criticized in the early days of the 2019 session. It created a statutory scheme that competed, and often conflicted, with Kentucky’s open records law. Among other things, it exempted public employee disciplinary records from public inspection, imposed stiffer penalties on records custodians for disclosing information than current law imposes on agencies that willfully withhold nonprotected information, and authorized the courts to declare a records request “frivolous” and impose agency attorneys’ fees on “frivolous” requesters.
Confronted by overwhelming opposition, Carroll withdrew the bill and agreed to work with the Kentucky Press Association to address critics’ objections.
But last week WKMS-FM reported that Carroll intends to refile a “simplified” version of the bill. Although the refiled bill will delete the provision authorizing nondisclosure of disciplinary records, KPA counsel Michael Abate expressed continuing opposition. He explained that the bill “press[es] some of these procedural and systemic portions of the [open records] law” that are “unwise” and likely to have serious “unintended consequences.”
If, as expected, SB 193 largely mirrors SB 14 the cost to transparency and accountability will be incalculable.
Not to be outdone Representative Jason Petrie, R-Elkton, introduced HB 387, an act “relating to public records for economic development,” on Feb. 14. Petrie sponsored last year’s HB 216. Rolled into and enacted into law as HB 302, it created two new exceptions to Kentucky’s open government laws, both designed to prevent the public from exercising an existing legal, albeit limited, right to monitor public procurement.
HB 387 erects additional impediments to public access by expanding two existing exceptions to the open records law. It restricts access to records confidentially disclosed to a public agency to “participate in an activity that is regulated by a public agency” and prohibits disclosure of “trade secrets” to “any person.” It curiously redefines the term “trade secret” to include “financial information, information regarding the identity or investment interest of shareholders, and present or future business plans” in contrast to the definition of the term that appears in Kentucky’s Uniform Trade Secrets Act.
This is precisely the information at issue in the Braidy Industries open records case pending in the courts.
Perhaps most troubling, HB 387 introduces two new exceptions to the open records law for “information declared confidential by the Kentucky Economic Development Finance Authority pursuant to an administrative regulation” and “records that pertain to proposed economic development incentives not adopted in final action through acceptance by the grantee and approval by the relevant public agency.”
Critics have noted that this language would have authorized nondisclosure of the City of Louisville’s unsuccessful Amazon incentive package, an issue also in the courts.
Finally, HB 387 expands the exception for records “pertaining to a prospective location of a business or industry” in Kentucky to the same records from “states, territories, or countries with whom the Commonwealth had a reciprocal economic development agreement at the time of the creation or receipt of the records.”
It is unclear what particular records access issue this provision is intended to preempt. It is abundantly clear that the public’s ability to scrutinize how public agencies incentivize and “promote” economic development, to expose self-dealing, and to assess the legitimacy and financial bona fides of private entities doing business with the state, will be severely impaired if HB 387 becomes law.
Gone are the days when we anticipated bills like SB 230 authorizing emailed open records requests and filed by Senator Will Schroder, R-Wilder, on Feb. 15. Last amended in 1994, the current law permits submission of requests by hand delivery, mail, or fax, but has been interpreted to exclude emailed requests. If enacted, SB 230 will make the law more user-friendly and bring Kentucky one step closer to entering the 21st century.
Now we await each legislative session with trepidation and watch in disgust as the legislature undertakes the steady erosion of our open government laws to promote its agenda and the sunlight fades in Kentucky.
Amye Bensenhaver worked in the Kentucky Attorney General’s office for 25 years as an assistant attorney general focusing exclusively on open records and open meetings dispute resolution.