SB 63: “A remarkably ill-conceived, unworkable, and fundamentally unnecessary bill”

Amye Bensenhaver
Amye Bensenhaver

Editorial boards, First Amendment experts, open government advocates, and pundits across Kentucky are voicing opposition to Senator Danny Carroll's SB 63, a bill that substantially amends the Open Records Act. The latest to weigh in are columnists for the Courier Journal and the Lexington Herald-Leader, Joe Gerth and Linda Blackford. They credit Carroll with one thing: stubborn persistence.

Some would characterize it as bullheadedness.

SB 63 is the latest iteration of Carroll's 2019 bill -- a bill so convoluted that it was passed to the interim for further discussion at the committee chair's direction. A pared-down version of that 2019 bill made progress through the Senate and House last year, clearing virtually every legislative obstacle. It was piggybacked with Rep. John Blanton’s HB 540 – a much broader, and even more unworkable, version that more closely mirrored Carroll’s 2019 withdrawn version -- passed by both chambers, and was sent to the governor for signature, but the governor vetoed the bill. Kentucky was “saved by the bell,” as it were, when lawmakers ran out of time to override the veto.

None of this changes the basic fact that Carroll’s current bill — SB 63 — is a remarkably ill-conceived, equally unworkable, and fundamentally unnecessary bill that will upend the nearly fifty year old open records law by transforming it from a disclosure law to a nondisclosure law.

It is a bill modeled on a one-year-old New Jersey bill that has resulted in chaos not only for the public — whose right of access to public records is now mired in its bureaucratic role out — but also for the public officials it is designed to protect and the public agencies charged with its implementation and enforcement.

As the KY Open Government Coalition points out in our Statement of Opposition to SB 63, within a year of enactment of the New Jersey bill, the Garden State has been forced to enact new legislation aimed at addressing the overwhelming challenges of implementation of the law on which Carroll’s bill is modeled. This includes the creation of a new New Jersey agency to act as a clearinghouse, a series of carve-outs, and a legal disclaimer that assertion of the new “right” may abridge other rights and interfere with business interactions.

New Jersey’s experience, the Coalition asserts, should provide a cautionary tale to Kentucky’s General Assembly.

Just as important, as Gerth and Blackford point out, opposition to the bill is not confined to the “liberal” media or open government advocacy groups like the Kentucky Open Government Coalition.

The “right leaning” Bowling Green Daily News recently published a scathing editorial about SB 63. Acknowledging that it often represents an opposing editorial point of view from many of Kentucky’s leading newspapers, the Daily News’ editorial board nevertheless joined that chorus in decrying “the seemingly endless pursuit of Kentucky Republicans to mock the concept of public transparency, to weaken the press, and to generally disregard basic freedoms afforded by the First Amendment.”

The Daily News editorial board continued, “The GOP’s recent track record leaves little reason to give the party the benefit of the doubt. A preponderance of the evidence suggests many Republicans have become so intolerant of scrutiny and accountability that they are willing to legislate against transparency and the First Amendment. Considering how often Republicans rant about being mistreated by the ‘liberal media’ or the ‘fake news,’ it’s pretty obvious what they’re really trying to achieve: a codified way to evade watchdogs, both in the press and the general public.”

And in the coup de grâce, the Daily News declared:

“Politicians who lack the maturity or the backbone to deal with criticism or opposing viewpoints should leave public office altogether, instead of trying to rig the game in order to make their jobs more comfortable.

“This recurring theme in conservative politics is profoundly disappointing and frightening, and we urge reasonable-minded elected officials on both sides of the aisle to firmly oppose all such misguided and dangerous efforts to undermine our freedoms.”

The truth is, this is not a conservative or liberal issue. This is not a Republican or Democrat issue. It is a good governmental issue — something lawmakers recognized in Kentucky and across the country in the 1970s — and something that unites people at either end of the political spectrum as well as nearly everyone in between.

We recognize something that the people we elect to represent us apparently do not:

The right of the public to be informed transcends any of the transparently false excuses they annually trot out to shield public agencies and officials from the sanitizing light of public scrutiny.
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Amye Bensenhaver

Amye is a retired assistant AG who specialized in open records laws. She is the co-founder of the Kentucky Open Government Coalition. (Read the rest of her bio on the Contributors page.)

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