A publication of the Kentucky Center for Public Service Journalism

Amye Bensenhaver: An analysis of statutory scheme that undermines Kentucky’s open records law

The unnamed authors of BR 821, sponsored by Representative Danny Carroll (R-Paducah), are described by Carroll as “a state Homeland Security employee and a Secret Service agent working in Kentucky.” They have accomplished something hitherto unknown in the annals of Kentucky’s open government laws: a legislative proposal that disserves both the public and public agencies.

BR 821 creates a statutory scheme that competes, and often conflicts, with Kentucky’s open records law. That law that has been tested and proven to secure and protect both the public’s and public agencies’ interests over the last 43 years.

BR 821 abridges the public’s statutorily recognized right of access to some nonexempt records and raises the specter of “improper” records requests for which a requester might be penalized. It poses substantial legal challenges in interpretation and enforcement to public agencies and exposes them to potential liability for records disclosure, whether negligent or intentional, that far exceeds their potential liability for willful nondisclosure under the existing open records law.

In its current form, BR 821 cannot be reconciled–and cannot coexist–with the open records law.

In detail, BR 821 would:

 redefine and narrow the scope of the terms “public agency” and “public record” in a manner that conflicts with the definition of those terms in the open records law;

 establish ten subsets of “protected information,” including Social Security Numbers, home addresses, date of birth, and medical information, which is already protected under the privacy exception to the open records law as it relates to public agency employees and their families;

 deprive the public of its right to know that a public employee has been disciplined for misconduct and that a public agency discharged its duty to fully and fairly investigate allegations of misconduct leveled against a public employee and impose appropriate discipline;

 eliminate the “clearly” unwarranted standard for personal privacy that exists in the open records law and that produced a 26-year-old body of case law favoring access and recognizing that, with few exceptions, resolution of the question of whether an invasion of privacy is unwarranted is “intrinsically situational,” and “can only be determined within a specific context”;

 create enhanced rights of privacy for ten subsets of public employees, including sworn peace officers, certain employees of the Department of Financial Institutions, the Department of Revenue, the Cabinet for Health and Family Services, state and federal correctional employees and prosecutors, and judges (with the curious omission of judges serving on the Court of Appeals);

 regulate, in detail, disclosure of Social Security Numbers;

 cast third-party contractors who maintain records containing the “protected information” in the role of middlemen in producing public records and expose them to liability for various infractions;

 omit a specific timeframe
for production of public records other than “within a reasonable time”;

 expose a public officer who violates its provisions by disclosing protected information to a fine “not exceeding five hundred dollars ($500) per violation”; and

 courts to determine
whether a request for a public record was submitted for an improper purpose (defined as a “frivolous purpose”) and expose the requester to liability for the agency’s attorneys’ fees;

BR 821 is legal jabberwocky.

Where it is not overtly bad, it is redundant, a poorly cobbled together statute that apparently borrows from a variety of sources without reference to internal consistency or compatibility with the existing open records law. It poses a grave threat to the public’s right to know whether “agencies properly execute their statutory functions” and “whether public servants are indeed serving the public” by divesting the public of its right to records relating to public employee misconduct and discipline where the need to know might be the greatest. It raises the stakes for all stakeholders by exposing them to potential monetary liability, thus impeding transparency and obstructing accountability.

Carroll is a former police officer whose stated goal is “to ensure public safety officers’ public information is protected” and who, rightly or wrongly, believes that the open records law fails to do so.

To his credit, he has expressed a willingness to work with open government advocates who oppose the bill.

Respectfully, he would achieve the best results by scuttling BR 821, salvaging the few useful provisions of the bill (including a provision that requires agencies to preserve all public records that are the subject of an open records dispute during the pendency of the dispute), and working with those advocates to introduce new, but consistent and complimentary language, into the existing open records law if needed.

Amye Bensenhaver spent 25 years as an assistant attorney general in Frankfort and is an expert on open records and open meetings. Now out of state government, she writes about these issues. She has written more than 2000 legal opinions related to the state’s open records and open meetings laws.

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See the KYCIR story about the bill at the NKyTribune here.

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