Kentucky's House Bill 312 threatens to make previously open records inaccessible to the general public. Co-founder of the Kentucky Open Government Coalition and former Attorney General Amye Besenhaver speaks to Tracy Ross about the new bill's broader implications.
House Bill 312 was introduced in the Kentucky House of Representatives on February 2, 2021. The bill has since been approved by both the House and Senate and has been delivered to Governor Andy Beshear as of March 15. Besenhaver explains three major issues with the bill:
"Essentially, what [the bill] will do now is permit the public to use a standardized open request form. Previously, the standard for making an open record request was minimal, meaning it was very user-friendly. It was designed to facilitate the public's ability to use that. Going forward, it will be a form...that requires you to provide more information," she explains.
"The problem with that...is it discourages some requesters," Besenhaver continues. "They added in several layers of information that the law doesn't currently require. That's a big change--the notion that you have a very minimal requirement to make an open records request."
"The second impediment to access that the law contains is a requirement that you reside in Kentucky. That is enormous," Besenhaver says. "If you live near the border of any state that has a law that requires residency, you know what those challenges are. [The House] retreated just a bit by expanding the definition of resident. There was a lot of pushback from the national media."
Besenhaver explains that the Kentucky Open Government Coalition had written a letter of opposition in response to the new residency requirement, but "because it was all dropped on us very secretly," the letter did not make it to the House. The coalition believes the new requirement will create issues for non-residents who have a critical need for public records they no longer qualify to access.
"The third major component is, basically, the legislature doesn't want anybody in their business. They have insulated themselves. They are saying 'from the effective date of this bill going forward, we will decide what you get. It's a very narrow category of records that we provide. If you don't like our denial, you can appeal to us, the [Legislative Research Commission], but what we decide is final and unappealable.'"
This means appeals could no longer be taken to the court, Besenhaver explains. "There's a case currently in the courts involving access to a sexual harassment investigative file of a legislator. Those kinds of records presumably will be inaccessible. That is deeply troubling."
In addition to the new form and eligibility requirements, "there are three more exceptions that may come up," Besenhaver says. One exception pertains to privacy around judges, prosecutors, and police officers. Another exception is a broader category for public officials relating to their home addresses, which Besenhaver explains have always been protected.
"The third one, and the one that really disturbed me that no one opposed except for the coalition, is one relating to what would essentially be bystander and surveillance video like the George Floyd bystander video or the surveillance video in the Wendy's parking lot where Rayshard Brooks was killed."
The Kentucky Press Association took a neutral stance on the bill. The coalition "does not impugn" this decision, but Besenhaver admits the coalition was initially confused. "What we have since learned is there was some horse-trading," she explains. In return for its neutral stance, the KPA avoided certain exceptions--or "permanent bars to access"--being added to the bill.
"Chiefly, [the KPA] was focusing on economic development and the most serious one of all, the preliminary documents exception, which is already vastly overused and abused. [Legislators] were going to expand the preliminary documents exception and make it even more available to public agencies to deny access. [The KPA] felt like this was the best they could do to avoid getting those exceptions." Besenhaver fears that a neutral stance will not prevent these same exceptions from being brought up again in the future.
Kentucky already had an open records law in place prior to the approval of HB 312. "It's a good, solid law," Besenhaver says. "Like the Constitution, there's a fluidity in the language that enables the law to evolve with the times. I think it all depends on the willingness of people to defend the law--the Attorney General's understanding of his role, the courts' understanding of their role."
Besenhaver says HB 312 was enacted after two years of "furtive, secretive dealings and discussions that nobody was privy to. And especially with COVID, we've come to realize how much we rely on public information to make decisions about our health and welfare. With each erosion of the [original open records] law, we as the public suffer. We have fewer and fewer rights."
"We're not the media. The media's voice is generally, until this session, well represented. That's good. We want people to come in here and look at what's going on in Kentucky; whether it's Purdue Pharma and the opioid crisis, the Breonna Taylor case, we want that national media oversight."
"But we also want citizens who have a critical need for records to be able to access those records even though they reside outside the state," Besenhaver continues. "I think that's what's being lost in this discussion on the pretext that we are 'unburdening' public agencies from all these frivolous out-of-state requests. Honestly, nobody offered any kind of statistical analysis to suggest that agencies are, in fact, overburdened by out-of-state requests." And if they actually were, she explains, the current 45-year-old open records law already has an answer to that issue in the form of the 'intent to disrupt essential function' provision.
Besenhaver isn't sure whether Governor Beshear will veto HB 312, but she "doesn't think it will ultimately matter. It's more or less a symbolic gesture because the [state legislature has] no problem overriding his vetoes."
In an article in Kentucky Forward, Besenhaver insists the fight against HB 312 is not yet finished. The KY Open Government Coalition will continue to oppose the diminishing of the public's rights with "stubborn resistance, with redoubled commitment, and with the confidence that the public recognizes these cynical and self-serving legislative assaults on open government for what they are: a clear and unmistakable desire to engender fear and mistrust of our existing laws for the purpose of avoiding accountability."
Find more details regarding HB 312 on the Kentucky General Assembly's website. For more information on Amye Besenhaver or the Kentucky Open Government Coalition, visit their website.
