A final word on HB 302: Why we must remain vigilant

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While the fate of HB 302 is still uncertain,  the potentially devastating consequences of passage of the amendment to the bill, as originally introduced by Sen. Damon Thayer, R-Georgetown, in the last two minutes of the Senate State and Local Government Committee’s March 21 meeting, have been avoided. But there are good reasons for remaining vigilant.

In a blog written within hours of learning of its passage out of committee and assignment to the Consent Calendar for Senate approval the following day, the Bluegrass Institute raised public awareness of the grave threat posed by the bill, and Senator Thayer’s amendment redefining the term “public record” in the 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.”

The public responded to this “transparent attempt to undermine Kentucky’s transparency laws,” which had been introduced with the casualness of a housekeeping measure, with nearly universal outrage.

Senate leaders reacted by removing the bill from the Consent Calendar and entering into a hastily brokered compromise that created a new exception to the Open Records Act for “[c]ommunications of a purely personal nature unrelated to any governmental function.”

In an op-ed that appeared in both the Courier Journal and the State Journal, we described the revised amendment as “a statement of the obvious” and “nothing more than a waste of legislative time and effort.” Further, we noted,  because of its over-inclusive language, it might “create a loophole for abuse of public devices to conduct improper private communications.”

Enough, for now, has been said and written about the threat to open records that Senator Thayer’s amendment represented. It remains for the House of Representatives to approve the meaningless measure hammered out as a compromise solution -- or not -- in the closing days of the 2018 legislative session. In light of this week’s events, we are hopeful that the legislature will make more effective use of its time.

But little has been said or written about the threat to open meetings any narrowing of the definition of the term “public record” poses. There can be no doubt, however, that the threat is every bit as real and imminent.

Two recent articles – one from Arkansas and the other from Michigan – demonstrate the perils of government by email. On April 8, the Arkansas Democrat Gazette’s online edition reported that, “[a]fter being found in violation of the state's Freedom of Information Act, the city of Fort Smith wants to narrow the legal definition of what this cherished Act considers to be a meeting.” A judge “ found city board members violated the law by exchanging emails involving city business without giving legally required public notice.”

The article noted that the court’s ruling “that elected officials can't conduct informal meetings about their business via emails,” mirrored a 2017 case declaring that the Fort Smith School District violated state law when school board members were caught conducting business among themselves via email without giving public notice.

And in an article posted on April 10, MLive/Muskegon Chronicle reported on repeated violations of Michigan's open meetings law by members of the Muskegon Public Schools' Board of Trustees who routinely participate in group text and email messages that relate to public business, including the school district’s administrative pay structure, investigations into personnel matters, and severance packages.

To be sure, these articles come as no surprise. Kentucky has experienced the same problem for many years, aided and abetted by the 2015 open records decision  to which Senator Thayer admiringly referred when he introduced his amendment. That decision -- issued by then Attorney General Jack Conway on his last day in office – erroneously determined that email concerning public business that is conducted by public officials and employees on privately owned devices is not accessible under the Open Records Act because it is not “possessed” by the public agency they serve.

As we noted in a joint statement issued on March 26; “Email has become the preferred method of communication used by public officials and employees and represents a substantial amount of the public record memorializing the transaction of the public’s business.”

If the amendment to HB 302 had been enacted in its original form, “what has until now been a legally unsupportable and judicially untested interpretation of the Open Records Act in a decision wrongly issued by the Kentucky Attorney General [would have been] codified into statute and allow[ed] public officials and employees to transact public business secretly and destroy any record of such transactions at will. Kentucky would have [had] the dubious distinction of being one of the few states – if not the only state – codifying the right of a public official to conduct public business in secret.”

Public officials and employees wishing to evade scrutiny – whether through their records or during their meetings – would have received a license to do so with absolute impunity.

While this offensive conduct may never be entirely eradicated, we must do everything in our power to protect our laws securing the public’s right to know. This means demanding that legislators proceed with caution in proposing legislation that adversely impacts our right to know;  holding legislators to the highest standard of accountability when they introduce such legislation; and remaining vigilant in our scrutiny of the legislative process to ensure that future threats to our right to know are exposed and defeated.