Kentucky House passes bill that adds loopholes to open records law

Kentucky Lantern

FRANKFORT — The House approved a Republican-backed bill that open government advocates have repeatedly warned would add loopholes to Kentucky’s open records laws. 

Rep. John Hodgson, R-Fisherville, recently said in the House State Government Committee that House Bill 509 seeks to modernize state open records laws, which were established in the 1970s before widespread use of email and text messages. He reiterated that intent on the floor Tuesday. 

Rep. John Hodgson (LRC Public Information)

“This bill attempts to close a gap that has been created in subsequent decades by requiring that the tens of thousands of people that work for public agencies or serve as appointed board members in some capacity have an agency-designated email provided for them so that they can conduct their official business with those searchable electronic platforms,” Hodgson said. 

The House voted 61-31 to advance the bill. Thirteen Republican members joined Democrats in opposing the bill. 

Shortly after it was filed, the legislation drew criticism from open records advocates across the state. The Kentucky Press Association called the bill “an all-out assault on transparency.” First Amendment lawyer Michael Abate, who represents Kentucky news organizations and the press association, said on X, formerly Twitter, that the measure “would eviscerate access to public records in the Commonwealth” and noted it had support from House GOP leadership. 

Hodgson introduced changes to the bill with a committee substitute version of the bill. He removed sections that would have redefined what a public record is. However, Abate, representing KPA, said in the committee hearing that the bill still had a “loophole” that could allow officials to hide public business in private text messages and email.

The bill provides that a government employee or official using a private device for public business could be disciplined, but the bill does not expressly say those improper records should be disclosed under the law.

Speaker David Osborne, of Prospect, and Majority Whip Jason Nemes, of Louisville, are co-sponsors of the bill. 

Hodgson filed a floor amendment to his bill that requires public agencies to publish information online about their officials, such as the length of their term and their agency-furnished email address.. It also says public agencies must search for records on any electronic device or system that is their property. The amendment was adopted in a voice vote. 

Rep. Lindsey Burke, D-Lexington, filed several floor amendments, but they were not called for a vote. One would have required that any public records created on personal devices would be subject to public disclosure. Another would have required public agencies to furnish mobile devices or a digital communication application controlled by the agency to employees. 

The bill now goes to the Senate for consideration. 

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