Politics & Government

Expert: Kentucky lawmakers take ‘a wrecking ball’ to Open Records Act with House bill

A Kentucky House panel late Tuesday vastly expanded the scope of a bill to weaken the state’s Open Records Act, adding new sections that would help the legislature shield its own documents from public view and limit the right to file records requests to Kentucky residents.

“I walked into that hearing last night thinking this bill was going to be bad enough, but then they went and made it even worse. They really want a government that operates in darkness,” said Amye Bensenhaver, a former assistant attorney general who is an authority on Kentucky’s open records and open meetings laws.

Originally, House Bill 387 — now headed to the House floor — would have created several additional exemptions in the open records law to conceal information about state economic development incentives offered to companies. This was intended, in part, to thwart open records lawsuits involving public incentives offered to Amazon in Louisville and Braidy Industries in northeastern Kentucky.

A substitute version of the bill, adopted by the House Committee on Economic Development and Workforce Investment, kept that language but added more.

Only Kentucky residents would be eligible to use the Open Records Act, not all people, as the law presently allows.

A much-used exemption to public disclosure for “preliminary” documents would be expanded to include any records in which recommendations are made or opinions are expressed if they “are not incorporated” into a final record. This likely would be used to justify the withholding of many more government documents in the future, and for no legitimate purpose, Bensenhaver said.

People involved in lawsuits with the state could not use the records law to collect documents anymore; they would have to use the discovery process in court.

And decisions about records in the possession of the General Assembly would be decided by the Legislative Research Commission, which is run by the Senate president and House speaker, with no appeal in court possible.

Currently, most open records appeals are decided by the attorney general’s office and then can proceed to circuit court. Legislative records appeals are handled a little differently, going from the LRC straight to court. The Lexington Herald-Leader is currently suing the LRC for access to records related to a sexual harassment complaint filed in 2015 against state Rep. Jim Stewart III, R-Flat Lick.

Bensenhaver said the bill, sponsored by state Rep. Jason Petrie, R-Elkton, is the most aggressive assault on the Open Records Act that she has ever seen.

State Rep. Jason Petrie LRC Public Information

“These are fundamental changes to the law that absolutely horrify me,” Bensenhaver said.

“One day they’re going to regret these changes, because the political dynamic will shift in Frankfort — it always does — and there will be a Democratic administration again, and the Republican legislators will want to pry loose some information about state government. But because they’ve taken a wrecking ball to the government transparency laws, they’ll be out of luck,” she said.

Petrie did not return a call Wednesday morning seeking comment on his bill.

Speaking to the House committee late Tuesday, Petrie said his proposed changes are reasonable.

“I still think as a policy matter, this is a good direction to go,” Petrie told his colleagues. “Is the sky falling? No. Are these things always ‘The sky is falling’ when you talk about open records? It seems to be. Again, I don’t fault anybody for it, I’m glad people are pushing to keep things as open as possible.”

After the hearing, Petrie said state law already is meant to recognize the LRC as the final arbiter of legislative records decisions unless the legislative branch takes more than 30 days to respond, at which point the requester can appeal to circuit court. However, that law has been misinterpreted by a judge overseeing the Herald-Leader’s lawsuit who assumed the LRC couldn’t have meant for itself to be the final step in the appeals process, he said.

“What this would seek to do is say ‘No, we meant exactly what we said,’” Petrie said.

As for public records from non-Kentuckians, Petrie said, “you can end up with agencies being burdened down in almost an harassing-type nature of requests coming in from out-of-state.”

“And quite honestly, I’m not worried about out-of-state people,” he said. “I’m worried about in-state people and in-state interests looking at what’s going on. What’s the purpose of the open records? Is it to be open and transparent to the rest of the world or is it to be open to the people and residents of Kentucky? I think it’s the latter and not the former.”

The state Economic Development Cabinet said it requested the original version of Petrie’s bill in order to preserve its competitive advantage while it used financial incentives to lure companies to Kentucky or encouraged existing companies to expand here.

It’s a mistake to let the legislature decide what records about the General Assembly the public can and cannot see, Bensenhaver said. The news media and others have relied on open records requests to learn about controversies, including sexual harassment scandals at the Capitol that toppled House Speaker Jeff Hoover, R-Jamestown.

It also would be “terrible policy,” she said, to limit access to the open records law to Kentuckians.

“I find that really shocking,” Bensenhaver said. “So someone driving through the state of Kentucky who has a car wreck, who writes to get a copy of their accident report, now they’re ineligible to use the open records law? So the Boston Globe’s STAT can’t use the open records law to get the discovery materials from the state’s Purdue Pharma OxyContin lawsuit? What good does this do?”

STAT, a Boston-based health news outlet, successfully has used Kentucky’s open records law for several years to pursue information about the state’s $24 million settlement with Purdue Pharma over the company’s alleged “improper marketing” of the prescription painkiller OxyContin. The Kentucky Supreme Court is considering whether to accept Purdue Pharma’s latest appeal of the case.

“With government transparency laws, it shouldn’t matter who is asking or why they’re asking,” she said. “That’s not relevant. All that matters is whether the document in question is a public document. If it is, then it needs to be released.”

John Cheves is a government accountability reporter at the Lexington Herald-Leader. He joined the newspaper in 1997 and previously worked in its Washington and Frankfort bureaus and covered the courthouse beat.