Proposal would be 'a dagger through the heart' of Kentucky's open-records law, opponents say

jcheves@herald-leader.comMarch 6, 2014 

State Rep. Derrick Graham is a Frankfort Democrat.

— Government agencies could charge hundreds of dollars for public records that are currently free or cost little under a bill that would rewrite the Kentucky Open Records Act.

"It looks like this innocuous little bill, but it's really a dagger through the heart of the Open Records Act and, as a result, government transparency," said Jon Fleischaker, a First Amendment lawyer in Louisville.

State Rep. Derrick Graham, D-Frankfort, filed House Bill 548 this week, although after he was questioned about it Thursday, he said he doesn't plan to seek a vote on it.

Graham's bill would let government agencies charge 10 cents a page for records they keep in a digital format, such as a database or word document, even if a member of the public requests and receives the record in digital form and no print copies are made. Some records are the equivalent of thousands of printed pages, putting potential fees in the hundreds of dollars.

"If you're a reporter who uses public databases and spreadsheets to investigate government, think of how much money you're talking about," Fleischaker said.

Under the Open Records Act, government agencies may not charge the public more than the actual cost of providing documents. Digital records, which can be copied and sent by email with a few clicks on a keyboard, often are free or cost a few dollars at most.

News organizations and others use the Open Records Act to uncover what government does and how it spends taxpayer money, said David Thompson, executive director of the Kentucky Press Association. The law works only if public records are readily available at a reasonable cost, Thompson said.

"The Open Records Act is not supposed to make money for government, and it's not supposed to discourage people from asking," Thompson said. "If you impose a substantial cost on people, you're changing the whole system around."

The Kentucky Department of Insurance asked for the change in the records law, Graham said Thursday.

"They were getting a lot of requests for electronic records," Graham said. "That is fine, but because it's hundreds of documents, they asked that I attempt to allow these requests to be covered as if they were a hard copy. It takes time for someone to prepare the electronic copies, and that takes them away from their regular job duties."

A spokesman for the Department of Insurance, however, said the agency did not ask for the bill and does not have a position on it.

"I don't know where Derrick got it that Insurance asked for this legislation," spokesman Dick Brown said. "There's some miscommunication with Derrick, I guess."

In response to that, Graham later said it was "an individual, one of my constituents" at the Public Protection Cabinet who called him privately to request the bill, although he declined to name the person. The cabinet includes the Department of Insurance.

Graham said he doesn't intend for his bill to interfere with scrutiny of government, and that having thought about it Thursday, he's not inclined to push it any further. The bill is assigned to the House State Government Committee, where chairman Brent Yonts, D-Greenville, said he hadn't seen it yet.

"I'd have to be convinced of a need for it," Yonts said.

John Cheves: (859) 231-3266. Twitter: @BGPolitics. Blog: Bluegrasspolitics.bloginky.com.

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