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Kentucky lawmakers scale back proposal to shield more public records from disclosure

A side-view of the Kentucky Capitol building is shown, with trees off in the distance.
Getty Images/iStockphoto
A Kentucky House committee advanced a bill Thursday that would restrict access to public records.

Open government proponents warned House Bill 509 would “eviscerate” state public records law. They say a new version is better but still has problems.

Kentucky lawmakers reduced the scope of a proposal that originally could have eliminated citizens’ access to many types of government documents.

House Bill 509 would’ve redefined the concept of “public records” in a narrower way, which critics said would block citizens’ access to a wide array of documents they’re allowed to review under current state law.

It doesn’t do that anymore — a change welcomed by the Kentucky Press Association and the Kentucky Open Government Coalition, which voiced huge concerns with the original bill.

However, the new version of HB 509 would exempt information on government officials’ personal phones and private email accounts from disclosure.

The bill’s lead sponsor, Republican Rep. John Hodgson of Fisherville, indicated his goal is to protect the privacy of public servants.

“The public absolutely has a right to know. I was a citizen activist for 15 years. I made use of the open records rules myself,” he said at a legislative committee meeting Thursday. “But I'm also an electronic privacy advocate.”

Specifically, the updated HB 509 requires public agencies to arrange official email accounts for employees, board members and other representatives.

It also says workers risk being disciplined if they use non-official email accounts to conduct public business, while board members risk removal for doing the same.

Agencies that comply with the new requirements would not have to search for or disclose work-related records — like text messages or emails — stored on government employees and officials’ personal devices or private accounts.

Attorney Michael Abate, representing the Kentucky Press Association, told state lawmakers Thursday that the updated bill includes “productive changes.”

He also said HB 509’s rule that government employees shouldn’t use private email accounts to conduct public business is “laudable.”

But he raised some concerns about the latest version of the bill. For example, he noted, it doesn’t tell workers not to text about government activity on private phones, even as it exempts their public employer from checking for such messages.

“And we just think there are a few tweaks to this bill that can and should be made to help make sure we don't, frankly, create a giant loophole through which somebody who is determined to hide their communications could easily just walk through,” he said.

Abate also represents LPM News in open records disputes.

Bill sponsor Hodgson expressed concern that government workers or people who serve on public boards and commissions could be told to turn over their personal phones for review under the current open records law.

“If there's some evidence of wrongdoing … we certainly have the opportunity to go file civil or criminal charges and have a subpoena and access those records,” he said. “But I think to subject probably almost a half a million people in this state that either work for a public agency or are unpaid board volunteers to this kind of scrutiny in their personal life is crossing the line.”

Abate, who has litigated many open records cases, said people aren’t expected to hand over their phone for forensic examination.

“Our point is just this: If you choose to create a public record on a personal device, you run the risk that if somebody asks you, you're going to have to screenshot the text and hand it over. That's it,” he said. “No one's asking for intrusive searches of somebody's devices.”

But he argued the Legislature shouldn’t broadly shield text messages about government activities from Kentuckians’ view if officials send them on personal phones.

He offered to work with Hodgson and other lawmakers to make further updates to the bill to address such concerns.

The House State Government Committee voted Thursday to advance HB 509, clearing it for a future vote by the full House of Representatives.

Morgan is LPM's health reporter. Email Morgan at mwatkins@lpm.org.