By Jim Waters
Sen. Danny Carroll gave new meaning during the first week of the General Assembly to the adage “better late than never” by pulling a bill he presented as protecting the personal information of law enforcement officers, judges, social service professionals and even firefighters from criminal crazies seeking retaliation but instead would have greatly increased the burden for law-abiding citizens seeking vital information about their own government.
Carroll’s bill would have gutted a large swath of the entire Kentucky Open Records Act in the name of protecting home addresses and Social Security numbers of public officials even though such protection already exists.
It’s hard to argue with the Louisville attorney Jon Fleischaker, who helped write the commonwealth’s open records law more than four decades ago and who told the Courier Journal that Carroll’s bill is designed “to protect law enforcement when members may be accused of wrongdoing and, in fact, have done wrong.”
Passing this bill would have offered real — if unintended — consequences.
For example, public documents used by reporters to show a pattern of abuse associated with the Louisville Metro Police Department’s Explorer program would have been barred, as would have access to records at the Cabinet Health and Family Services regarding children who died from abuse or neglect along with information about sexual-harassment allegations by state employees.
The bill was especially egregious in that its sharp teeth provided a special class of public workers the kind and amount of protection the average citizen doesn’t receive by imposing penalties of up to $500 per violation on public officials who wrongly release information, which is contradictory in a couple of ways.
First, people can reveal information about where private citizens who simply have been accused of wrongdoing live and work without consequences.
Second, while mistakenly releasing information about public officials can cost as much as $500 per violation, public agencies are fined no more than $25 daily for wrongly withholding information from private citizens filing open records requests.
Such disparity would have been matched in proportion only by the amount of arbitrary power the bill gave judges who would decide whether to grant open records requests of those turned down by public agencies.
Judges would have been allowed to rule on whether those seeking records were doing so for an improper or frivolous purpose and force them to pay the legal fees of the very government agency which denied their request.
Fortunately, Carroll pulled his warped bill after acknowledging he was only the bill’s sponsor, not even its author, and following an outpouring of well-deserved criticism.
Yet while this attempt to erode Kentucky transparency laws failed, others have succeeded in recent years.
During last year’s legislative session, a last-minute amendment introduced to House Bill 302 at a Senate State and Local Government Committee meeting would have redefined the term “public record” in Kentucky’s Open Records Act to exclude “emails, texts or calls on devices paid for entirely with private funds and which do not involve government email accounts.”
Amye Bensenhaver, who served as an assistant attorney general under six Kentucky attorneys general, called the bill with the proposed amendment, “the single most devastating blow to transparency in government in my 27 years with the Kentucky Open Records and Meetings Law.”
HB 302 should also have been pulled.
Instead, lawmakers passed a version that removed the offensive, last-minute amendment yet still created three new barriers to the public’s right to know what government is doing.
Frankfort must halt this erosion to Kentucky’s open records and meetings law posed by such bills and rebuild our commitment leading the nation in providing citizens and their correspondents the access needed for true government transparency and the accountability such openness provides.
Jim Waters is president and chief executive of the Bluegrass Institute for Public Policy Solutions.