This op-ed by Amye Bensenhaver, director of the Bluegrass Institute Center for Open Government, recently appeared in the Courier-Journal and Frankfort State Journal and summarizes the events that followed the introduction of a committee amendment to HB 302 in the last two minutes of the Senate State and Local Government Committee’s March 21 meeting.
The amendment was introduced with the casualness of a housekeeping measure and passed out of committee without opposition. Had it not been detected, the amendment would have had a devastating effect on the public’s right to know by substantially narrowing the definition of the term “public record” to exclude communications by public officials and employees on their private devices.
The Bluegrass Institute Center for Open Government played a significant role in exposing the actual impact of the proposed amendment but was not invited to participate in subsequent discussions aimed at minimizing the harm.
The revised amendment, which passed out of the Senate and is awaiting action by the House when it returns on April 13, creates an exception for “communications of a purely personal nature.” Although this compromise language represents a substantial improvement over the original committee amendment, it creates a new loophole in the law that enables public agencies to deny an open records request for “private” communications transmitted by public officials and employees on public devices.
The amendment directs an interim legislative committee to discuss “the use of personal devices in the Open Records Act.”
If this really is about getting it right and not just about catering to a particular special interest, Bensenhaver, one of the commonwealth’s foremost experts on Kentucky’s Open Meetings and Open Records acts, will be seated at the table.