An article in the October 9 Lexington Herald-Leader — “KY nonresidents are denied access to open records. What happens when their loved one dies?” — underscores the manifest injustice of the open records residency requirement ill-advisedly enacted into law by Kentucky’s General Assembly in 2021.
In enacting a “resident users only” requirement, lawmakers argued that a law limiting use of the open records law to Kentuckians would reduce the cost to Kentucky taxpayers of responding to numerous requests from out of state requestors – an agency resource/cost saving measure.
Public records law residency requirements exist in a small minority of states. This includes our neighbors in Tennessee and Virginia, where the requirement has done more harm than good and reaped few, if any, benefits. For this reason, the Kentucky Open Government Coalition vigorously opposed the measure from the moment of its introduction.
In an early post, the Coalition wrote:
“Proponents of a ‘residents only’ law are apparently intent on walling Kentucky’s public records off from nonresident requesters.
“Sadly, their position fails to recognize that ‘the importance of state government information does not stop at state lines.’
“It also fails to recognize that the handful of ‘resident only’ public records laws that exist across the country are so porous, so easily evaded, and so inconsistently enforced as to render them useless. No known data confirming their effectiveness as an agency resource/cost saving measure exists. For these and other reasons, Florida has eliminated its ‘resident only’ requirements.”
We analyzed the challenges verification of residency poses for agency officials – stalling the process for both residents and nonresidents – concluding that “[e]nforcement in most of the states [that have enacted residency requirements] is uneven and inconsistent.”
We also examined the “very real human toll” residency requirements exact. For example, we noted, a nonresident seeking information on a suitable nursing home for an aging parent can be denied access to Kentucky nursing home inspection reports. A nonresident victim of a crime, or a nonresident involved in a car accident, can be denied access to law enforcement records – to say nothing of nonresident genealogists, researchers, and data gatherers, some of whom render a valuable service by providing employment background checks, consumer credit checks, and automobile history/safety information.
Shortly after passage of the 2021 bill, the Coalition and scores of signatories — including the Reporters Committee for Freedom of the Press, the National Freedom of Information Coalition, Scripps Media, and the Associated Press — submitted a veto request to the Governor. The Governor vetoed the bill, and the legislature promptly overrode his veto.
Herein lies the problem.
Kentucky’s legislative supermajority, often the impetus for anti-open government legislation, is deaf to the practical realities of the impractical laws they enact. At times, they seem intent on cultivating ignorance, willfully rejecting the combined knowledge and experience of seasoned practitioners and open government experts to effortlessly abridge Kentucky’s half-century old right “to know” – a right cherished by the public.
As last session’s failed House Bill 509 clearly demonstrated, the open records and open meetings laws command the support of grassroots Democrats and Republicans — and voters across the political spectrum — who understand that open government is good government.
HB 509 would have excluded from the open records law public servants’ messaging on their private devices and accounts that relates to public business. Its opponents included individuals and organizations affiliated with far right and far left positions. It may not be dead. Other threats loom.
This gives us pause.
As the 2025 Regular Session of the General Assembly approaches, Kentucky’s public servants, including its state lawmakers, would do well to remember that those who say “no” to public records access, are not saying “no” to a single requester but to the people — all people — who understand that government is their servant and not their master.
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