Can a state analysis of how a bill moving through the Kentucky General Assembly would impact state finances be labeled “confidential” and hidden from the public?
While most state legislatures require bills affecting government finances to have such an analysis produced and be made public, the answer to that question in Kentucky is yes.
That answer came as a surprise to more than two dozen current and former state legislators asked by KPR, unaware that fiscal notes prepared for already filed bills could be marked confidential and hidden, instead of posted online with the bill. This includes six current committee chairs in the Republican supermajority, as well as one member of GOP leadership.
Fiscal note statements are the analyses prepared by the nonpartisan staff of the Legislative Research Commission (LRC), the administrative arm of the Kentucky General Assembly. The notes estimate how a bill will affect state government revenues and expenditures, but they are not required under Kentucky law or the rules of either chamber for a bill to advance — let alone required to be made public, when requested and produced.
Members of both parties and Kentucky policy advocates criticized this policy on the grounds that it is not just poor government transparency, but bad fiscal policy that could hide the true costs of legislation before it is passed into law.
One example of a bill that passed into law with a hidden confidential fiscal note in recent years is also one of the most impactful bills of the past decade in Kentucky — House Bill 8 from 2022, which set up a process to incrementally cut the state’s individual income tax until it is eliminated.
When HB 8 was before the House budget committee, there was already a fiscal note posted online for an outdated version of the bill, but not the significantly amended version they were voting on.
Former Democratic Rep. Angie Hatton of Whitesburg called for a motion to delay a vote on HB 8 until the fiscal note on the updated committee substitute was completed and attached to the bill, pursuant to chamber rules. Hatton’s motion was quickly defeated by a voice vote in the GOP-dominated committee, followed by the passage of the bill.
House Bill 8 would pass into law later that month, but the LRC never published the confidential fiscal note that was completed for the final version of the bill that same day, which detailed an estimated loss of $888 million of state revenue over the following two fiscal years.
KPR first discovered one of these confidential fiscal note statements — appearing just like normal ones, only labeled “CONFIDENTIAL” at the top and bottom in red ink — in June. We have subsequently obtained copies of more than 20 other fiscal notes marked confidential in the same format for bills that passed into law in 2021, 2022, 2023 and 2024, which were not posted on the bills’ webpages. There are likely many more, but the LRC denied open records requests for copies.
Read the rest at Louisville Public Media.
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