Postscript: HB 302 passes by a vote of 48-39
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Following a “debate” lasting only a few minutes, the Kentucky House of Representatives passed HB 302 by a vote of 48-39 on April 14. The Senate had adopted a modified version of the original bill by a vote of 23-9 on March 29.
Much has been written about the bill. It began as “An act relating to reorganization” in the Public Protection Cabinet when it was introduced by Rep. Danny Bentley, R-Russell, on February 2, 2018. It passed out of the House in this form by a vote of 82-1 on February 23.
What emerged from the ensuing backroom legislative process, the details of which are known only to those who orchestrated it, was a decision to roll two wholly unrelated bills—SB 186 and HB 216--into one bill—HB 302--whose passage its sponsors were determine to ensure by any means necessary.
SB 186 renames a little known but vitally important state agency, the State Archives and Records Commission, as the State Libraries, Archives, and Records Commission and revises the membership of the commission. The Archives and Records Commission has existed within the Kentucky Department for Libraries and Archives since 1958. Its statutory charge, in those sixty years, has been to determine how long, and in what manner, all state and local public records must be retained and managed. In 1994, the General Assembly recognized an “essential relationship” between the laws governing the Commission and its function and the laws governing open records. Twenty four years later, the General Assembly has subordinated the Commission’s role to that of the equally important, but wholly unrelated, State Advisory Council on Libraries.
HB 216 amends the Open Meetings Act to entirely exclude selection committees established under KRS Chapters 45A and 56 from all open meeting requirements. Additionally, it excludes information identifying members of selection committees and records of the procurement processes established under KRS Chapters 45A and 56 from the requirements of the Open Records Act. It divests the public of existing open records and meetings rights as they relate to multi-million dollar built-to-suit and other procurement processes based on the apparent belief that the less the public knows the better.
The Senate State and Local Government Committee heard testimony on HB 302, in its new but not improved form, in the last few minutes of its March 21 meeting. With two minutes to spare, Sen. Damon Thayer, R-Georgetown, introduced a committee amendment to the bill aimed at 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.” Later that evening, the Bluegrass Institute Center for Open Government blogged that, if enacted into law, the amendment would “represent the single most devastating blow to transparency in government in [at least 27 years of] the Kentucky Open Records and Meetings Law.”
In the following days, the Senate, the Kentucky Press Association, and unspecified “others,” hammered out a far less offensive, but completely unnecessary, amendment that creates a new exception to the Open Records Law for “[c]ommunications of a purely personal nature unrelated to any governmental function." Such communications were never encompassed by the Open Records Act, and the amendment, as we noted in an op-ed, “is a statement of the obvious that represents nothing more than a waste of legislative time and effort . . . [and that] may create a loophole [through over-inclusive language] for abuse of public devices to conduct improper private communications.”
The Bluegrass Institute Center for Open Government continued to publicly object to HB 302 in the days immediately preceding its passage. When, at last, it was presented for discussion in the House on April 14, we watched in dismay as its sponsor, Rep. Bentley, reassured Rep. Jim Wayne, D-Louisville, that there was no remaining opposition to the bill. Rep. Wayne expressed respectful skepticism about his inability to get a direct answer to his question whether opponents on both the right and left, who had testified against HB 216, approved the bill. Rep. Bentley assurance that no opposition remained was, perhaps unwittingly, false.
The Bluegrass Institute Center for Open Government acknowledges that the newly languaged amendment that passed into law is far less offensive than Sen. Thayer’s original amendment, and that compromises must be reached. But we remain opposed to a bill, soon to be law, that creates three new exceptions to the public’s right to know—two in open records and one in open meetings—that were deemed worthy of little to no debate. Additionally, we remain concerned about the very real potential that the amendment’s unintended consequences include a loophole for public official and employees who may hereafter misuse public equipment for personal use without fear of public scrutiny. Finally, we remain concerned about the negative impact on proper records retention and management that is likely to result from the consolidation of the disparate public records functions and libraries functions of the Kentucky Department for Libraries and Archives in a single body.
If anything good can be extracted from this unfortunate affair, it is the legislature’s recognition in the amendment of the need for a “study [of] the issue of personal devices in the Open Records Act during the 2018 interim" by the Interim Joint Committee on State Government. There is a great deal more work that lies ahead. We are hopeful that the Center for Open Government will be afforded the opportunity to participate in the study to bring a broader perspective to this complex and challenging issue which we identified in our inaugural proposal for legislative revision of Kentucky’s Sunshine Laws as “one of the gravest current threats to both the open meetings and open records laws and government accountability generally.”