In the mid 70s, Kentucky established a right of access to public records through the Open Records Act. Nearly 40 years later, this act is being jeopardized by restrictive new bill proposals. Amye Bensenhaver, director of the KY Open Government Coalition, visits Sounds Good to discuss the law, amendments, and the fight to maintain civilian and media access to public records.
"In 1976, the General Assembly enacted the Open Records Act, KRS 61.870 KRS 61.884, which establishes a right of access to public records. The General Assembly recognized that free and open examination of public records is in the public interest. All public records, whether they are stored in a computer or on paper, must be open for inspection unless the records are exempted by one or more of the fourteen exemptions found in the Act. You may inspect any nonexempt public record regardless of your identity, and you may seek enforcement of the Act if you are denied this right."
Two years prior, the General Assembly also enacted the Open Meetings Act, KRS 61.800 to KRS 61.850, which "establishes a right of access to public meetings. The General Assembly recognized that the formation of public policy is public business, and should not be conducted in secret. The Act requires that all meetings of a quorum of the members of a public agency where public business is discussed or action is taken must be public meetings. Public meetings must be open to the public at all times, unless the subject of the meeting falls within one or more of the thirteen exceptions found in the statute. You may attend any public meeting, and you cannot be required to identify yourself in order to attend."
In January of 2019, State Senator Danny Carroll, a Paducah Republican, pre-filed a bill (SB 193) that would create a new section of state law that exempts whole categories from public inspection. Any information regarding the "promotion, appraisal, and employee discipline records" of police and many other public employees would no longer be available to the public under this bill. Carroll said the bill is "designed to protect confidential information of public employees such as police, firefighters, judges and social service professionals who might experience retaliation." Critics of Carroll's proposal say the new bill would "eviscerate" Kentucky open records law.
The KY Open Government Coalition was formed by Amye Bensenhaver and Jennifer Brown in response to the proposed changes to the Open Records Act. "The goal [of the coalition] is to reach across party lines to make it clear that this is a non-partisan issue," Bensenhaver explains. "This is an issue every citizen should be deeply committed to, this is a goal we should all aspire to." Bensenhaver and Brown were scheduled to testify on behalf of the coalition before the Joint Interim Committee this week, but the discussion was removed from the agenda.
Bensenhaver says that Carroll's intentions behind the bill were "positive ones" and "to ensure the protection of personal privacy for public employees." "Our message to the legislator was going to be: this truly is not a problem," Bensenhaver says. "Kentucky law already adequately addresses that issue. 25 years in the Attorney General's office confirmed to me that this really is a solution looking for a problem. [SB 193] was going to create tremendous difficulty in interpretation, application, for agencies and the public. So ultimately, we hope that those problems can be hammered out, a better bill or one that's needed at all can be submitted. Obviously, we commend Senator Carroll's willingness to talk about improving the bill."
"One of our primary goals is to galvanize citizens to make them advocates for open government. We've always had a media interest, this is the fuel that drives the media. You see it constantly. The media has made effective use of the law to the extent that the courts and public agencies permit. They've made effective use of the law since its enactment. When I was in the Attorney General's office, the number of appeals filed by citizens exceeded the number filed by media outlets. We're attempting to educate citizens so they can become advocates for open records, open meetings, because it's really they're right." Bensenhaver emphasizes that while this right is regularly exercised by the media, it is equally as important to the non-media public. "The perception is that, because it's the fuel that drives journalism or reporting, that it's an exclusive tool for journalists. But the reality is, everyone stands in the same shoes under the open records law. The media does not have an enhanced right of access, it enjoys the same right of access as a citizen. That's what I really enjoyed and particularly liked about the law when I was interpreting it for the Attorney General. It's very egalitarian. Everyone stands in the same shoes. Everyone has an equal right of access. No one is entitled to preferential treatment."
For those interested in supporting the coalition and the right to public record access, Bensenhaver encourages individuals to follow the KY Open Government Coalition Facebook page. "We are a very active Facebook page," Bensenhaver says. "There are ways of monitoring what's going on - the trends, the common problems that exist in the law, by going on our Facebook page. I'm posting two or three times a day, sometimes more - pretty meaty analysis of what's going on, pretty substantive stuff. Pointing out to people how our law could be improved, how they can use the law." The Coalition is also available to do onsite training in order to educate and support the efforts of citizens and to "basically provide a voice for them in Frankfort when these challenges of the law arises."
"I don't know what the future holds, but I hear it holds more of what we saw in the [first SB 193 proposal]. We really encourage citizens who have concerns about preserving their rights under the open records law to call their legislators and express support for the existing law. Each time we've seen these bills introduced it's resulted in a reduction of the public's right to know," Bensenhaver concludes. "When push comes to shove, and we're really seeing threats to our law, [citizens] really need to be galvanized into action and really express their support...I think really what the most central thing about the last session is, is that we were successful in avoiding the enactment of those [bills] that would've posed a serious threat to open government.