Guest op-ed: Transparency the cure for cancer of government secrecy — The Bluegrass Institute for Public Policy Solutions

Editor’s note: The Bluegrass Institute for Public Policy Solutions supports the policy position expressed in the following guest op-ed coauthored by Sen. Adrienne Southworth, R-Southworth, and former Assistant Attorney General Amye Bensenhaver, co-director of the Kentucky Open Government Coalition. The institute through its Center for Open Government consistently opposes any attempts by Frankfort’s politicians to weaken Kentucky’s open records and meetings policies, which are some of the nation’s strongest.

Open records laws are an issue on which Kentuckians of all political stripes agree.

Open records laws are under attack in Kentucky.

So, a right-leaning freshman state senator and a left-leaning retired assistant attorney general – both advocates for open records – have come together against House Bill 312 as written.

Kentucky open records laws were enacted in the immediate aftermath of Watergate and the Vietnam War – an era when public mistrust of government was at historic levels.

With this impetus, Kentucky’s lawmakers enacted the open records law in 1976. The law favors public access, expressly recognizing that “free and open examination of public records is in the public interest,” even though such examination “may cause inconvenience or embarrassment to public officials or others.”

Fast forward 45 years. Public mistrust of government is again at historic highs. Ironically, Kentucky’s lawmakers have chosen this era to weaken our open records laws.

Secrecy is the cancer on state and local government that spreads mistrust. This includes the secrecy that surrounded the introduction of HB 312 as a committee substitute to “An Act relating to financial institutions.”

The cure is less secrecy. While HB 312 incorporates much-needed email requirements, it simultaneously discourages the public from making open records requests and holding Kentucky’s public agencies accountable.

Here are some of our reasons for opposing HB 312:

Amye Besenhaver, KY Open Government Coalition

“Resident only” requirements for using open records create delays and obstructions for resident and nonresident users, chilling public participation and imposing new burdens on public agencies. The proof lies in other states that have adopted these requirements. Homegrown “cottage industries” have sprung up, preying on nonresidents by charging fees to route the requests through a domiciled name.
This could include the nonresident seeking information on a suitable nursing home for an aging parent in Kentucky; the nonresident victim of a crime or involved in an automobile accident in Kentucky; or the nonresident living just over the Kentucky state line who has a direct interest in local records.
“Standardized” open records request forms that mandate disclosure of “personally identifiable information” discourage requesters who are reluctant to share personal information with state or local government to certify entitlement to the records they seek. In many cases, they also discourage requesters who don’t own computers or have access to the internet.
We must consider all methods of submitting open records requests – including walk-in requesters, requesters who submit requests by fax, and requesters who submit their requests by email – not just snail-mail requests that normally require a return address and may include phone numbers to discuss records or costs, for example.
Eliminating judicial review of the General Assembly’s denials of public records requests is an insult to the public. The public elect the members of the General Assembly and support it through their tax dollars.
The law favors disclosure of public records, provides limited exceptions that permit nondisclosure and mandates third-party review where records access disputes arise. This is a self-serving attempt to shield legislators from possible “inconvenience or embarrassment” every other Kentucky public agency must and should accept.

Public servants are stewards of the public trust and their documents and records. If we fail in our duty to the public, there may be no recourse. All legislators need to hear from the public they represent.

Simply call 1-800-372-7181 to leave your message. Your voice must be heard.

Sen. Adrienne Southworth, R-Lawrenceburg, represents the 7th district, which encompasses Anderson, Franklin, Gallatin, Owen and Woodford counties. She serves as a member of the Senate Standing Committee on State & Local Government, the Program Review and Investigations Committee, and the Budget Review Subcommittee on General Government, among others.

Amye Bensenhaver is a former assistant attorney general who reviewed open records and open meetings for 25 years, authoring decisions, responding to inquiries and making presentations. She is now co-director of the Kentucky Open Government Coalition, a bipartisan, grassroots group established in 2019 to provide a citizen’s voice on issues pertaining to Kentucky’s open government laws.