In a win for transparency, KY Senate kills bill creating Open Records Act ‘loophole’

The Kentucky Open Records Act remains intact.

Since its 1976 passage, the transparency law has ensured that all Kentuckians have the right to access the records that give glimpses into the inner workings of their government, from spending decisions to how public employees do their job..

First Amendment advocates said that longstanding power was under threat this legislative session as House Bill 509, sponsored by Rep. John Hodgson, R-Fischerville, threatened to create a “loophole” that would have allowed government officials to communicate about public business through texts or direct messaging apps without public scrutiny.

Having already passed a Senate committee in late March, the fate of the bill was in the full Senate’s hands Monday as lawmakers convened for their final day of the 2024 General Assembly.

But the legislature adjourned Monday evening without the Senate giving the controversial bill final passage, leaving the records law unscathed for at least another year.

“The people of Kentucky have prevailed,” the Kentucky Open Government Coalition posted on social media.

Opponents of the bill included the coalition, conservative group Americans For Prosperity, the Kentucky Press Association and First Amendment attorneys, including Jon Fleischaker, who helped author the records law decades ago.

Majority Floor Leader Damon Thayer said after adjournment that “there just wasn’t any energy in the (Republican) caucus to get it done.”

“Hardly anybody brought it up to me. I think maybe one person over the weekend brought it up, but that’s it,” the Georgetown Republican said. “I think that’s an issue that probably isn’t going away.”

Thayer, who voted in favor of the bill in committee, said he’d urge Hodgson to work with the sponsors of the various floor amendments to HB 509 to come up with a better version of the bill before the start of next year’s session in January.

Senate President Robert Stivers, R-Manchester, said he was personally in favor of the bill and also anticipated it would be up for discussion during the interim.

The only Republican senator to vote against the bill in committee, Gex Williams of Verona, said the bill’s focus on email alone was “not sufficient.” Williams filed a floor amendment to attempt to address the bill’s shortcomings, but said he’s happy to work on it through the interim instead.

“That’s the sort of thing that has big changes and consequences, and so it needs to have eyes on it over a period of time,” Williams said.

Williams also said he believed the public scrutiny of the bill had “a great deal” of influence on its demise.

Hodgson said it was “unfortunate we did not proactively address the electronic communication issue this session.”

“The need for this legislation will likely become more evident over the next year,” he said. “We need to clearly define the balance between public disclosure and personal privacy.”

Hodgson has said his bill was needed to protect officials from having their personal communications released to the public, but he also admitted he was not aware of any public official in Kentucky who had their personal emails or texts released under the existing records law.

Michael Abate, an attorney for the Kentucky Press Association, has said that was a “made-up concern,” and the existing law sufficiently protects personal privacy.

Hodgson’s bill took several forms over the course of the 60-day General Assembly, some more drastic than others in the limitations placed on public disclosure.

In the version green-lit by the Senate committee and full House, government entities would have been required to provide employees, board members or other officials with government-issued or agency-furnished email accounts for their government work.

Those officials would have been explicitly barred from using any other email account for government work.

If those conditions were met, the agency would have only been “required to search for or produce to a requesting party electronic information or documents” that are in the official email address or government-owned device.

This, opponents said, would have allowed officials to circumvent the Open Records Act entirely by communicating through other electronic means, such as texts or through apps like Signal or WhatsApp.

Gov. Andy Beshear, a Democrat, never outright said how he would have acted on the bill if it reached his desk, but he repeatedly defended it at his weekly press conferences.