“Adjourned sine die.”
The sweetest phrase in the legislative lexicon.
Open government advocates on March 30 breathed a sigh of relief as lawmakers departed the Capitol until noon, January 2, 2024 — certainly compared to a broad swath of Kentuckians who felt the sting of legislative injustice in the 2023 Regular session.
Amye Bensenhaver
It was a session typified by supermajority secrecy and overt indifference to the public’s — and, in many cases, minority lawmakers’ — right to know, to participate, and to be heard.
It was a session in which only one major bill directly and adversely impacting the open records law — SB 62 — secured passage. It remains to be seen whether undetonated landmines are buried elsewhere.
We have written, at length, about the dangers posed by SB 62 — “The Personal Privacy Protection Act” — which creates a new exception to the open records law for “personal information.”
The term “personal information” is defined elsewhere in the new law as “any list, record, registry, roll, roster, or other compilation of data of any kind that directly or indirectly identifies a person as a member, supporter, volunteer, or donor of financial or nonfinancial support to any nonprofit organization.”
Violations of the law may be prosecuted in the criminal and civil courts and carry substantial monetary penalties/damages.
According to its sponsor, Sen. Whitney Westerfield, SB 62 merely codifies a 2021 United States Supreme Court opinion — Americans for Prosperity Foundation v Bonta — in which the Court’s conservative majority struck down a California law requiring charities to disclose to the state attorney general tax forms that include the names and addresses of their major donors “because it burdens donors’ First Amendment rights” of free association.
Westerfield acknowledged that Kentucky law does not require the disclosure of donors to the Kentucky Attorney General in the regulation of charities. There is, in fact, no known Kentucky public agency — subject to the open records law — that compiles charitable donor personal information.
As the Coalition noted in our statement of opposition to SB 62, “The problem is illusory. The threat to open government is real.”
When and how that threat will manifest itself is, for now, TBD. We are slightly reassured that a similar, albeit more narrowly drafted, Virginia bill law — enacted in 2022 — targeted the same illusory problem and has not been misused or abused to date.
But the lasting legacy of the 2023 Regular Session of the Kentucky General Assembly can be summarized in a single word: disenfranchisement.
Disenfranchisement, in the 2023 legislative session, meant exclusion of the public from all but the most carefully orchestrated legislative “debate;” suppression of dissenting voices; deprivation through brazen trickery and deceit, of a meaningful opportunity to participate and be heard; and secrecy on an epic scale.
It culminated in the arrest and shackling of protestors — many of them Kentuckians — in the legislative chambers. Kentucky’s supermajority sent a clear message that their fetish for advancing a reactionary agenda transcends the public’s right to know, to be heard, and to participate.
(See: https://www.courier-journal.com/story/news/2023/03/29/kentucky-senate-bill-150-protesters-arrested/70061465007/ and https://www.courier-journal.com/story/opinion/columnists/gerth/2023/03/31/andy-beshear-should-pardon-trans-rights-protesters-arrested-at-capitol/70064617007/
Clearly, “the formation of public policy is [no longer] the public’s business.”
“The people [no longer] retain control over the instruments that they have created.”
— Preamble, 1974 Ky.Acts Chap. 377 (The Open Meetings Act), cited in https://casetext.com/case/lexington-herald-leader-v-univ-of-ky
Amye Bensenhaver is a retired Kentucky assistant attorney general who authored open records and open meetings decisions for 25 years. She is co-founder and co-director of the Kentucky Open Government Coalition.
