Privacy worries a smokescreen for hiding the public’s business

Republished from Kentucky Lantern


A bill that emerged from a House committee would allow officials to hide public business on their personal devices.

FRANKFORT — Long before there were text messages, email, cell phones or computers small enough to slip into a purse  — back in the Neolithic when public records were created on IBM Selectric typewriters — the Kentucky Open Records Act protected personal privacy.

The Kentucky Open Records Act still protects personal privacy.

No one is at risk of having their shopping list, porn search or marital discord plucked from their cell phone and spread in public view because of the Open Records Act. 

(I’m not saying something personal you type into a device won’t come back to publicly haunt you. I’m saying it won’t be because of the Open Records Act.)

No one’s phone, computer or the box stashed in their basement has ever been seized or searched because of the Open Records Act. Or ever will be.

Layers of review built into the law prevent disclosure of private information. 

It’s possible that Rep. John Hodgson, sponsor of House Bill 509, sincerely worries that the sunshine law has a “dark side.”

Other lawmakers know better. Concerns about personal privacy are a smokescreen.

And, where there’s a smokescreen, there’s usually something that people need to see, something they need to know about their government, their community, their future.

HB 509 is a wink and a nod —  tacit permission for public officials to use their personal devices when they want to keep public business on the down low, just among them, the insiders. They’ll use their officially issued email accounts the rest of the time. There’s nothing in HB 509 to stop that and nothing that gives the public a right of access to public records on personal devices.

You can argue, like Gov. Andy Beshear, that “bad actors” will not hand over information they want hidden even if the law says they must. Maybe so, but HB 509 is an engraved invitation to hide public records. The current law provides penalties for intentionally concealing public records. HB 509 does not.

As Republican Sen. Gex Williams said, even if privacy concerns are real, HB 509 fails to accommodate “the necessity for open records — government records — to be available to citizens.”

Open government laws are for everyone, not just the news media. Here’s hoping the Kentucky Senate and Gov. Andy Beshear will see the light of public accountability and reject this attack on a law that has served Kentucky well for 50 years. 

In hopes of reassuring and informing, I ran a few questions by two of the state’s top authorities on open government laws and the First Amendment — Amye Bensenhaver of the Kentucky Open Government Coalition and Michael Abate, an attorney for the Kentucky Press Association. 

I’m combining, condensing and paraphrasing their responses, so advance apologies if I over abbreviate anything.

Question: How does the Kentucky Open Records Act protect personal communications and private information?

Answer: The law provides exceptions for “public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy” and “[c]ommunications of a purely personal nature unrelated to any governmental function.” The last exception was added just a few years ago, the last time legislators tried to exempt all “private” emails or texts from disclosure. This shows that HB 509 is not really about protecting “personal” information — it’s about shielding records from public view.

Also, the law exempts “correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency.”

Q: What happens under current law when a requester seeks public records that might be in personal accounts or on personal devices?

A: Government agencies have records custodians. The custodian asks the relevant employee or official to search for and turn over the requested records. The employee or official checks their desk, file cabinet, public and personal devices. Public servers are searched for responsive records. The law has never required or envisioned the records custodian searching through desk drawers or devices or conducting “fishing expeditions.”

Q: What have Kentucky courts said about public records on personal devices?

A: Courts have consistently held over decades that it is the content and purpose of a record — and not the place it’s stored — that determines whether the public can see it.

Q: Would elected officials or public employees be required under the current law to hand over their personal devices for examination?

A: No. They would be expected to share copies of requested public records from their devices, but the devices would remain in their possession. Kentucky Court of Appeals Judge J. Christopher McNeill asked about that in a recent challenge to the open records law by the Kentucky Department of Fish and Wildlife Resources. In that case, citizens who thought that commissioners were engaging in official communications on personal accounts filed an open records request for those records. The appeals court ruled that messages among commissioners that pertain to public business are public records even if they’re on personal devices. In his concurrence, McNeill wrote he wanted “to assuage any concerns the Kentucky Open Records Act requires public agencies to turn over private cell phones or that today’s holding will impose an extreme burden on agencies to identify and produce all public records generated on private cell phones or private email accounts. Our Opinion merely holds that ‘text messages [or emails] related to Commission business and stored on personal cell phones [or personal email accounts] of its members are public records generally subject to disclosure under the Open Records Act absent an applicable exception.’” KDFRW has appealed the decision to the Supreme Court, which has not decided whether to hear the case.

Q: Are messages sent to constituents to lawmakers on the General Assembly’s 800 number or through its email account subject to disclosure under the Open Records Act?

A: No.

Q: How could HB 509 be amended to better protect the public’s right to know?

A: At least two easy fixes have been proposed to this bill. First, if it is going to limit an agency’s obligation to search for records to public devices and email accounts, it should prohibit public officials and employees from discussing the public’s business via any other channels. Nothing in HB 509 would prevent officials or employees from using texts, messaging apps, collaboration software, etc. to communicate. The bill says only that if they have a government email they should not use private email.

Second, the bill should be clear that an individual who violates this requirement must themselves respond to an open records request, even if the agency need not do so.

Q: Anything else?
A: The loopholes created by HB 509 will be easily seen and exploited. And the problem will only get worse over time, as email becomes a less and less important form of communication. That some of HB 509’s supporters continue to deny these realities shows that they must be more concerned about hiding records than making them available to the public.

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