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Open government is under attack in Kentucky (again)

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By The Staff

By Daniel Bevarly

In a shocking effort by the Kentucky Legislature to undermine government transparency and accountability, Rep. Jason Petrie (R-Elkton) has introduced HB 387, which aims to make it harder for Kentuckians to know how their tax dollars are being used by the commonwealth to lure and incentivize businesses to locate there.

What’s worse (if not knowing how public dollars are being spent by government isn’t bad enough) is that it has come out of committee retaining its original provisions along with several new measures that would:

  • Eliminate the court appeals process to a denied request for legislative branch records.
  • Replace the Attorney General’s office as the decision maker on open (legislative branch) record petitions with the Legislative Research Commission — which is made up of members of the Kentucky House and Senate.
  • Exclude non-Kentucky residents from accessing records under the Kentucky Open Records Law — a devastating blow to investigative journalism nationally.
  • Prevent people filing open government litigation from using Kentucky’s Open Records Law to gather documents and requiring litigants to use the court system’s discovery process — an added burden of time and financial expenses for those who have been denied public records.

These nightmare examples should cause fear among Kentuckians as their state government exempts itself from access and accountability by eliminating the press and the public access from its public institutions. It won’t be long until local governments across the commonwealth begin to cite these new laws to block access to their institutions as well.

But it isn’t the first time open government has come under attack in Kentucky.

Just last year there was an effort by the Kentucky Legislature to pass an amendment introduced by Sen. Damon Thayer (R-Georgetown) to HB 302 that would exempt conversations and information sharing among members of the legislature having to do with official public business if those legislators conduct these discussions using their personal email addresses and personal cell phones.

Fortunately, several news and other civic organizations shed enough sunlight and concerns about this blatant attempt to circumvent government transparency and accountability that Sen. Thayer tabled his amendment.

Also last year, some public agencies in Kentucky actually filed lawsuits against members of the public for simply asking for public records. These “revenge” FOI lawsuits run counter to our nation’s First Amendment rights and are used by agencies to discourage and intimidate the public from seeking access to records.

In January, SB 14, sponsored by Sen. Danny Carroll (R-Paducah) was withdrawn with a placeholder bill (SB 193) in yet another attempt that would dismantle the Commonwealth’s open records law. Among a host of problems, SB 14/SB 193 would “create a new section of state law that exempts whole categories of records from public inspection — including any information related to ‘promotion, appraisal and employee discipline records’ of police and many other public employees, including state social service workers.”

Exempting public officials from the open government law by elevating their level of privacy is alarming, especially when there is no evidence to justify such exemptions. Another irony is that the bill sets fines for public employees who release the planned exempted records that exceeds the current state fine for withholding public records.

There is a crisis in Kentucky.

But if these laws aren’t quashed now, the damage isn’t just limited to the Bluegrass State. State legislatures watch each other. If a state succeeds with passing laws that decrease transparency and accountability, they will become an example for another state to point to and follow that pattern.

It all starts with a bad bill that becomes a bad law that becomes bad policy. Combating this pattern requires litigation — expensive for the litigator, the agency, and ultimately the taxpayer to fight a lawsuit for records that should be made available and, in the end, usually are.

Kentucky needs a strong coalition of diverse organizations to work together to shine light on these appalling attempts to weaken open government and inform and mobilize residents to respond.

If you understand or care about the importance of access to public records and proceedings in Kentucky, the time to act is now. Contact your legislators and tell them to stop dismantling a government “of the people and for the people” of Kentucky.

Daniel Bevarly is the executive director of the National Freedom of Information Coalition, a nonprofit, nonpartisan organization that promotes press freedom, litigation and legislative and administrative reforms that ensure open, transparent and accessible state and local governments.