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Kentucky Bill Would Let Officials Keep Public Business On Private Devices Secret

Erica Peterson

Republican leaders of the state Senate have shelved a bill that would shield government officials' personal computers and cell phones from open records requests, for now.

The amendment to House Bill 302 would change Kentucky’s open records laws to say that phone calls, text messages and emails sent or received on a privately-owned device would not be considered to be public records.

Official business transmitted through a personal email account would also be exempted.

Sen. Damon Thayer, a Republican from Georgetown and the amendment's sponsor, said he still wants the legislature to tweak to the open records laws, arguing that it won't be able to attract good politicians to run for office without changes.

"The ability of this legislature to act as a citizen legislature will cease. It will not attract good men and women of either political party to run for this office," Thayer said.

Republican leaders pulled the bill after it was initially posted for a vote on Thursday.

Earlier in the day, Thayer told reporters that the language “merely codifies” an advisory opinion made by former Democratic Attorney General Jack Conway.

“It’s just that late in the session like that, you’re presented with opportunities and we saw an opportunity to try and codify Attorney General Jack Conway’s opinion from over two years ago,” Thayer said.

In one of his last acts in office, former Conway issued an opinion that ruled officials could use private cell phones to carry out public business without being subject to open records act.

Amye Bensenhaver, an open records expert with the Bluegrass Institute, called the legislation a “real and imminent threat to the public’s right to know.”

In an online post, Bensenhaver said that she and other staff serving in Conway’s office at the time disagreed with the opinion.

“We knew what a devastating blow to open government this decision represented,” Bensenhaver wrote. “We knew that the overwhelming weight of legal authority did not support his position; we knew that nearly every state had taken an opposing position in case law or in statute; and we knew that, quite frankly, the decision opened the door to abuse of both the Open Records and Open Meetings Law.”

Conway's successor, Democratic Attorney General Andy Beshear said the handling of the legislation "shows that state government needs more transparency, not less."

"In its current form, the bill would change Kentucky’s Open Records law regarding the use of private emails or devices," Beshear said in a statement.

"Our office applies the law governing open records on a case-by-case basis and recently held that there have been violations of the Open Records law regarding the use of personal communications to conduct public business.”

Beshear cited two cases in which his office had ruled that government officials or institutions had violated open records laws — one involving an Erlanger City Council member and another dealing with a University of Kentucky professor..

House Bill 302 originally dealt with reorganizing the Public Protection Cabinet. It passed out of the state House last month and unanimously passed out of a legislative committee on Wednesday after the open records language was added.

This story has been updated.

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