Open records loopholes die in Kentucky Senate. Attempt to revive anti-DEI bill also fails.

Republished from Kentucky Lantern

FRANKFORT — A controversial rewriting of the Kentucky Open Records Act died in the Senate as the 2024 regular session ended Monday, but Republican leaders said lawmakers will revisit the issue during the interim before next year’s session.

An attempt to revive Republican legislation targeting diversity, equity and inclusion (DEI) in higher education also failed on the final day of this year’s session. Republican leaders said that effort also is likely to be renewed during the interim.

Senate Republican Floor Leader Damon Thayer communicates on the Senate floor. (Kentucky Lantern photo by Isabella Sepahban)

“This DEI issue is not going away,” Senate Republican Floor Leader Damon Thayer told reporters. “Most of us feel that there is an issue on our college campuses, but there just weren’t enough votes to move forward with the House version of the bill.” 

Because the session ended Monday, lawmakers would have been unable to override a veto by Gov. Andy Beshear, who has voiced strong support for DEI initiatives and programs

“There was a question not of whether to do something for DEI, it was a question of what to do,” Senate Republican President Robert Stivers told reporters. “And between the realities of the timing and that the governor could control anything, members felt like it was best to wait and try to work through the process.” 

Open records

The Senate never took up House Bill 509, which open government advocates warned would add loopholes to the Kentucky Open Records Act by limiting searches for public records to only devices or accounts owned by a government agency. 

The bill also said public agencies who found employees violating the bill by using a personal cell phone or email account for official communications may discipline them, but it’s unclear if those records could be publicly disclosed. Additionally, the bill did not describe the consequences an agency may take to discipline violators.

Opponents said the bill would encourage public officials to conduct public business on personal devices to keep it secret.

Thayer said there “wasn’t any energy in the caucus to get it done” because the bill had several floor amendments attached to it. 

Beshear had voiced support for the bill’s changes to the open records law. He has argued that it would allow more records to be disclosed by requiring that public officials be furnished an agency email account that a government agency could easily search.  

Throughout the session, politicians in Frankfort have lauded HB 509 as necessary to protect public officials’ privacy but critics have noted the bill could prevent public records created on private devices from being disclosed. The legislation would not have required agencies to search for public records on personal devices.

Senate President Robert Stivers. (Kentucky Lantern photo by Arden Barnes)

Stivers, of Manchester, said he had been in favor of the bill. He gave an example of public officials using a private device to take public calls or emails while also using it for family or personal business. 

“I think it was really the complexity of the issue and the timing of what people wanted to see and how you delineate between personal and private, but making sure that you didn’t cross over the line by having a public phone,” Stivers said. 

The Senate president said he had “no doubt” discussion of Kentucky’s open records law will come up again in the interim.

Thayer, too, said it was “an issue that probably isn’t going away.” He is on the Senate State and Local Government Committee and hopes to urge sponsors of the bill and amendments to work together before next year’s session. 

“It’s such a moving target with modern technology, and the fact that we are part-time citizen legislators, it’s hard not to do some of your government work on this phone,” he said. 

Thayer added he did not have his Legislative Research Commission email on his phone “for a reason,” but it would be “naive” to say he does not do any “government work” on it. 

“It would make me ineffective if I couldn’t, but also I don’t want people to have access to my personal phone,” he said. 

The Open Records Act, enacted in 1974, includes exceptions that shield personal and private information from disclosure. 

Lawmakers in the General Assembly are already shielded from the Kentucky Open Records law. They passed a law in 2021 that made legislative leaders the final arbiter of decisions about disclosing legislative records. Democratic Beshear issued a futile veto of the bill at the time. 

Diversity, equity, inclusion

Sen. Mike Wilson, R-Bowling Green. (Photo by LRC Public Information)

When he originally filed Senate Bill 6, Republican Whip Mike Wilson, of Bowling Green, said the goal was to prevent public postsecondary institutions from requiring employees and students to “endorse a specific ideology or political viewpoint” as part of graduation or hiring practices. The Senate passed his version on party lines. 

The House overhauled Senate Bill 6 to require ending DEI programs and offices at public universities and colleges. Rep. Jennifer Decker, R-Waddy, had amended Wilson’s bill in committee without consulting him.

The Senate refused to concur with the sweeping changes made in the House.

The bill was posted on the Senate’s orders of the day Monday but was never called for debate or a vote.

On Monday, Thayer said “the House was unwilling to work on” Wilson’s bill, and that became an issue for the Senate. He added that the caucus did like a lot in the House version but had “some constitutional concerns.”

Rep. Jennifer Decker, R-Waddy. (LRC Public Information)

“I urged those who are interested in that bill — and it’s a fairly large group — to work together in the interim,” said Thayer, who is not seeking reelection to his Senate seat this year. 

While no anti-DEI legislation crossed the finish line this year, the General Assembly’s proposals followed a nationwide trend of conservative politicians rolling back such measures. 

The Senate did concur with a House floor amendment to Senate Bill 191, a postsecondary funding bill, that would prohibit the use of “any race-based metrics or targets in the formulas” for the higher education funding model. 

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