Bills impacting open government filed in week one of the Kentucky General Assembly

Transparency took center stage on the first day of the 2024 Regular Session as lawmakers debated the rules that will govern their proceedings. 

“Debated” is a generous term for the supermajority’s response to pleas for greater transparency in the bill passage process and expanded opportunities for public input. Their argument for maintaining the status quo was cynical and wholly unpersuasive. To no one’s surprise, the supermajority prevailed. In a 72 to 23 vote, the House of Representatives adopted rules that mirrored the rules of the 2023 Regular Session.

“The only change from the earlier rules,” The Kentucky Lantern reported, “was updating the year to 2024.”

Central to the arguments for greater transparency advanced by a handful of Democrats was the November 2023 Kentucky League of Women Voters study of the “fast track maneuvers” increasing employed by the supermajority to pass bills at the expense of participatory democracy. 

Republicans unconvincingly “refuted” their claims, and the findings of the study, by insisting that Democrats engaged in similar maneuvers — with greater frequency and even more calculated duplicity — when they held the majority. 

In essence, the supermajority argued, turnabout is fair play. Gaming the system is nothing new. In the race to undermine democracy, it is unclear which party “wins,” but Kentuckians are clearly the losers. Rules irrefutably destructive of participatory democracy will be preserved. 

WEEK ONE | OPEN GOVERNMENT BILLS INTRODUCED

Transparency receded into the background as quickly as it emerged as the central theme in Tuesday’s proceeding. At the close of day, 73 new and previously undisclosed bills were introduced in the House and 43 bills in the Senate. 

So where do laws advancing or impeding transparency stand one week into the session. 

Happily (for now), there isn’t much to report. 

Two bills unsuccessfully filed in the 2023 session, are back. 

HB 80

HB 80, sponsored by Rep. Kim Banta, would create a new section of the Kentucky Lottery Corporation statutes that prohibits publication of records identifying lottery winners whose prizes exceed one million dollars, and who request anonymity, for up to one year.

HB 80 would also amend the open records law by adding a new exception to the ever-expanding list of exceptions to the public’s right of access to public records. 

Banta’s nearly identical 2023 bill, HB 70, passed in the House but died in Senate committee.

Banta’s bill would have minimal impact. Certainly, it raises no major red flags. It is likely supported by sound public policy. 

But in assessing Banta’s 2023 bill, we wrote: 

“Kentucky lawmakers seem hellbent on annually expanding the number of exceptions to the open records law to create reactive and idiosyncratic exceptions. In the past, new agency specific exceptions were embedded in the agency statutes to which they related and [incorporated in to the records law by the existing exception for ‘public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly.’ They were] not replicated in the short list of open records exceptions available to all public agencies.”

“How many redundant exceptions to the open records law will lawmakers enact before they recognize how unwieldy the law has become and how wholly unnecessary they are?”

We remain deeply concerned about the enactment of duplicative exceptions to the open records law mirroring confidentiality statutes found elsewhere in the Kentucky Revised Statutes to which the open records law yields under KRS 61.878(1)(l) — itself duplicated at KRS 61.878(1)(k) — in records access disputes.

SB 37

Co-sponsored by Sen. Adrienne Southworth and Sen. Lindsey Tichenor, SB 37 establishes mandatory open records training requirements for public officials and employees. 

It is the successor to 2023’s SB 17, which Southworth alone sponsored and which never made it out of committee.

It does not, however, mirror Southworth’s 2023’s mandatory training bill.

It is an ambitious bill that would require official custodians of public records to undergo two hours of open records training provided in person or remotely by the Attorney General every two years after they satisfy initial training requirements. All other agency officials and employees would be required to complete one hour of open records training.

SB 37 defines “open records training” as an “overview of the legal requirements” of the open records law, including compliance procedures, a discussion of the Attorney General’s role, and a description of penalties “and other consequences” of noncompliance. 

It requires the creation of a database of official custodian contact information on the Attorney General’s website from information provided by “each public agency.”

And it expands the open records and open meetings training requirements that have existed since 2005 — found at KRS 15.257 and corresponding agency provisions — by requiring the Attorney General to distribute written materials about open records and open meetings laws not just to the statutorily identified officials and agency counsel for further distribution but to “all official custodians listed in the Attorney General’s database.” The custodians are then required to distribute the materials “to the employees of their respective agencies.”

The sponsors’ motivation is, no doubt, good, but the logistical challenges associated with their proposals are daunting. This is due, in part, to the number of public officials and employees they propose to reach. That challenge is exacerbated by the need for well-informed, balanced training from an Attorney General who just assumed office and who inherited unsettled open records and open meetings laws from his immediate predecessor. Will General Coleman — like Daniel Cameron — ignore decades of precedent to provide training based on his or his predecessors’ policies and preferences? 

Training, after all, is only as good as the trainer. Assuming Coleman makes no staff changes, his current nonmerit staff members lack broad experience, expertise, depth of knowledge, and perspective. 

Given these challenges, we remain convinced that online training using a stakeholder vetted and approved educational training module — that includes a mechanism for verifying completion — provides the best alternative. State government employees and officials are already familiar with this e-learning model. It’s wide use confirms that the advantages of e-learning largely outweigh the disadvantages. 

BILLS EXPANDING ACCESS TO PUBLIC RECORDS 

Two bills filed last week expand opportunities for access to public records.

HB 122 directs the Department of Revenue to publish “administrative writings,” as the bill defines that term, on its website within 120 days of their issuance or finalization and after the writings are redacted to protect taxpayer-specific information. “Administrative writings” includes final rulings, manuals, presentations, general information letters, and private letter rulings. 

HB 100 would establish a statutory mechanism by which a homeless individual could obtain a free copy of their birth certificate.

Week one of the 2024 Regular Session is behind us. No harm befell Kentucky’s open government laws. But the session does not conclude until April 15. There is every reason to fear that the worst lies ahead.

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