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The open records bill is better, but still has significant problems

The bill still exempts private devices and accounts from public records requests. Want to hide something you’re doing from the public? Just do it on your personal cell phone.

5 min read
Photo by Benjaminrobyn Jespersen / Unsplash

There were few surprises in the March 7 meeting of the House State Government Committee at which a committee substitute for House Bill 509 passed by a vote of 12-4-2.

HB 509, as originally introduced, proposed two changes to the open records law and one change to the open meetings law.

The original bill:

  • mandated public agency assignment of public email addresses to all public officers, employees, commissioners, and board members – with provision for agency carve outs – while prohibiting an employee or member of a board or commission from using an email account other than the agency email account to conduct the business of the public agency and authorizing “appropriate discipline” for failure to comply;
  • redefined “public record” by excluding all records “prepared, owned, used, in the possession of, or retained by a public agency” from the application of the open records law that do not also “document, record, memorialize, or give, notice to a person outside the public agency of a transaction or final action” – by any estimation, a sweeping change to that definition;
  • and, made action taken by a public agency at a public meeting voidable by a court if the agency imposed conditions on attendance “other than those required for the maintenance of order” or failed to provide “meeting room conditions, including adequate space, seating, and acoustics, which insofar as is feasible allow effective public observation.”

Following weeks of earnest discussion with HB 509’s sponsor, Rep. John Hodgson (R-Fisherville), Hodgson honored his commitment to eliminate those sections redefining “public record.” Credit is due Hodgson and the groups and individuals advocating for the open records law. I can attest that Rep. Hodgson actively engaged in those discussions and that they ultimately bore fruit. He should be commended for keeping an open mind and an open dialogue throughout these discussions.

The committee sub to HB 509 did, as Hodgson had agreed, eliminate the section of the original bill that vastly narrowed the definition of public record. He did not add a new exception for “Information or documents stored or retained on a device or email account that is the personal property of a current or former employee, officer, board member, or commission member” which were expressly excluded from the open records law in the original bill's redefinition of the term public record.

Instead, the committee sub retained original provisions mandating assignment of public email addresses, use of those addresses to conduct public business, and possible disciplinary action for failure to comply.

And it contained this new language:

“Notwithstanding any other provision of KRS 61.870 to 61.884, a public agency that complies with subsections (2), (3), and (4) of this section shall only be required to search for or produce to a requesting party electronic information or documents that are stored or contained in:
(a) A device that is the property of the public agency; or
(b) An email account that is an agency-furnished or agency-designated email account.”

Therein lies the rub.

Expressly limiting required agency searches to devices that are the property of the public agency and agency-designated email accounts is functionally equivalent to declaring that records stored on private devices or accounts are not public records. Either way, they are virtually, if not entirely, inaccessible.

Hodgson eloquently defended the open records law in introducing HB 509, but expressed the belief that “we are on a fault line between” the public’s right to know and rights of personal electronic privacy. He maintained that HB 509 “strikes the appropriate balance between” these competing rights.

And this, sadly, is where Rep. Hodgson and I may never find common ground.

When a person accepts a position in public service, wins election, or receives an appointment to public office — and when the person communicates about the business of the agency s/he serves — that person is no longer a private actor entitled to personal privacy protection for communications about public business on his public or private device or account.

The person steps into the arena of public service and forfeits, to a lesser or greater extent, his or her privacy interest in communications about that public service.

This does not mean that they can be compelled by the public agency they serve, much less an open records requester, to surrender their private cellphones or the password to their personal email account for an unrestricted search.

To the best of my knowledge, and to date, no one has offered a single example of a public servant who was forced to surrender his private cellphone or the password to his personal account – a false claim that was directly repudiated by the Court of Appeals in Kentucky Open Government Coalition v Kentucky Department of Fish and Wildlife Resources Commission.

“If you choose to create a public record on a personal device, you run the risk that, if somebody asks you, you’re gonna have to screenshot that text and hand it over. That's it,” media attorney Mike Abate said at Thursday’s committee meeting. “No one’s asking for intrusive searches of somebody’s devices.”

If, as Rep. Hodgson intimated in his remarks, it is the perception that open records requests that include communications about public business are "punitive," or are costing public agencies millions of dollars, that is actually driving this legislation, we can and should address that problem studiously, methodically, and with all stakeholders at the table, without “throwing the baby out with the bath water” by excluding communications about public business on private devices and accounts from the definition of public record, or prohibiting public agency search (as Abate describes) and production of those records.

House Bill 509 remains a proposal that drastically reduces the scope of the open records law by excluding the most common forms of communication about public business – emails, texts, and other electronic messaging – from its application. These have supplanted, as the sponsor correctly observed on March 7, what was formerly the most common form, namely, personal conversations and telephone calls. The fact that those old ways of doing business could not be monitored because no record documented them should not be a convincing argument for shielding public records that now do. Nor should it alter their status as public records.

A public record is a public record, though not all public records are open records. Some are shielded from inspection by one or more exceptions to the open records law. This provides another check on purported “fishing expedition.”

But erecting impenetrable barriers to access – short of some kind of proof of improper use of a private device and legal proceedings against the public user – by one proposed legislative change or another does not reassure us that the public’s right to know will not suffer an enormous setback in Kentucky.

More, not fewer, public servants will be driven to their private devices and personal accounts to conduct the public’s business upon passage of HB 509. Both the open records law, the open meetings law, and the public’s right to know will be the immediate casualties.

Even the committee substitute to HB 509, as Representative Tina Bojanowski observed in the March 7 committee meeting, “proceeds from the false belief that public business is not the public’s business if it is conducted on a private device or account.”

Hope remains, even as floor amendments begin to flood in, but it is growing dimmer.


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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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