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Amye Bensenhaver: The public is also at fault for allowing our lawmakers to evade accountability

Compounding the problems veteran political writer Al Cross identifies in his recent column in The NKyTribune — aptly titled, “Kentucky legislature does a lot of big things without a lot of scrutiny” — is the public’s failure, and now its inability, to hold current members of the General Assembly accountable through the laws enacted by their predecessors in the seventies which were intended to hold every elected official in Kentucky accountable: the open meetings and open records laws.

Cross writes:

“They cut taxes, big time. They agreed on the state’s basic policy document, the budget for the next two years, and much more. And they did it a lot of it with little or no public scrutiny.

“That’s how the Kentucky General Assembly operates these days, in an era when Republicans rule unchallenged – and few journalists are on hand to witness the proceedings and ask the questions that can be the most important: How did this legislation get passed? And why?”

Amye Bensenhaver

Cross — who wrote for The Courier Journal for decades and who is now a professor at, and director of, the Institute for Rural Journalism and Community Issues at the University of Kentucky — laments this lack of public scrutiny. He attributes legislative immunity from oversight, in part, to a woefully understaffed Capitol press corp and to the level of comfort in “solitude” to which lawmakers grew accustomed during the pandemic.

I attribute it to lawmakers’ utter disdain for “obsolete” notions like “transparency” and “accountability.” How else can we explain the ease — and shamelessness — with which they entirely exempted themselves from the open records law in 2021? How else can we explain their utter indifference to even a minimal level of compliance with the open meeting laws?

Each year lawmakers recede further and further from the principles enshrined in open government laws.

When they were enacted in the seventies, both the open meetings and the open records laws applied — by broad statutory definition — to the General Assembly. Still do: See 61.805 Definitions for KRS 61.805 to 61.850 and 61.870 Definitions for KRS 61.870 to 61.884

Past attorneys general held the General Assembly accountable under the open records and meetings laws. Until, that is, the General Assembly statutorily divested the attorney general of his former role in adjudicating records access disputes involving the General Assembly in 2003.

The courts held the General Assembly accountable under these laws — the open meetings law in 2018 and the open records law as recently as 2022 — all for naught as lawmakers openly ignored and mocked those laws, suggesting that they could not possibly conduct public business as other public agencies are expected to.

The legislative policy that informs the open records law — recognizing that “free and open examination of public records is in the public interest” — applied to others but not to it. Or so lawmakers’ daily actions communicated under a deeply offensive application of the “Do as I say, not as I do” public business model.

It was with relative ease that the General Assembly exempted itself from the open records law in 2021. Taking it one step further, they deprived the public of any mechanism for meaningful review of denial of legislative records requests by making themselves the final arbiter of access — no right of appeal to the attorney general (since 2003) and no right of appeal to the courts (after June 29, 2021.)

There is only one thing more disturbing than the reality of lawmakers run amuck. That is the reality of lawmakers run amuck who are accountable through neither their meetings nor their records to the people they serve.

And that is our current reality.

Amye Bensenhaver is a retired assistant attorney general, open government advocate, and blogger for the University of Kentucky Scripps Howard First Amendment Center. Along with Jennifer P. Brown, former editor of the Kentucky New Era and publisher of an online news site in her hometown of Hopkinsville, she helped establish the Kentucky Open Government Coalition to provide a voice for all citizens who support government transparency and accountability. 

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