Kentucky state Capitol building

The Kentucky state Capitol in Frankfort, Ky. (WDRB file photo)

LOUISVILLE, Ky. (WDRB) – The Kentucky General Assembly is weighing significant changes to the state’s public records law, a key tool used by journalists, businesses and citizens to access government documents.

House Bill 312, a Republican-sponsored measure meant to clean up a law on financial institutions, was rewritten last Thursday in a committee to alter the open records act, then voted out of the House of Representatives largely along party lines the next day.

The bill would create a residency requirement for open records requests, banning anyone living outside Kentucky from seeking records, along with out-of-state news organizations that don’t have an in-state affiliate and companies not registered in Kentucky.

It would give public agencies, such as city councils, school boards and state cabinets, five business days to acknowledge requests for documents – two more than allowed under the current law. A new, standard form would be required for all requests, replacing a system that simply asks for them in writing.  

Among other provisions, lawmakers also would have final say over whether to release records relating to themselves. The bill gives that power solely to the Legislative Research Commission, eliminating the option for a legal appeal.  

The bill’s main sponsor, Rep. Bart Rowland (R-Tompkinsville), said on the House floor last Friday that the legislation would help public agencies and prioritize requests from people and entities in Kentucky.

“Unfortunately many of our public records custodians are inundated with out-of-state requests from groups and people who are fishing for anything that they think they can sell or repurpose,” he said.

Rowland said public agencies should be open and transparent, “but it is important that we have guardrails in place to ensure Kentucky’s open records act is not abused.”

The Kentucky Open Government Coalition advocacy group sent a letter to Senate members Tuesday objecting to several portions of the bill it claims will create “unneeded and unwanted impediments to public access” and not ease the workload on public agencies.

One concern of the citizen-led coalition is that requiring people seeking records to identify "the exact nature of the documents requested" will actually discourage requests. In some cases, it's impossible to know exactly which records exist.

"The greatest challenge in filing an open records request is formulating the request that captures all responsive records and excludes those that are not responsive but is not so narrowly drawn that it omits some of the records sought," the letter says. "It is not easy."

More than 30 other people, groups and organizations joined the letter, including groups that cross the ideological spectrum, such as the Bluegrass Institute for Public Policy Solutions, Americans for Prosperity’s Kentucky chapter, the Kentucky Center for Economic Policy and the ACLU Kentucky. Other so-signers included labor unions, retired and current journalists and private citizens.

“Our greatest concern is the manner in which HB 312 was ‘sprung’ on the public with no meaningful notice or opportunity to be heard,” the letter says. “These discussions about the bill should, instead, be conducted under the sanitizing light of public scrutiny.”

The coalition argues that Kentuckians deserve to have input on the bill, which seeks to alter a law dating back to the mid-1970s. “The public should not be divested of those rights in a matter of a few days,” it says.

The Kentucky Press Association has taken no position on the bill, arguing that its work negotiating the legislation prevented deeper, more harmful cuts to the public’s right to access information.

David Thompson, the press association’s executive director, wrote in an email to its members last Friday that one such proposal would have created a new definition for “preliminary” records, making it easier for agencies to shield documents. Also under discussion, he said, were changes to the public’s right to know about economic development incentives.   

Thompson said extending the time public agencies can respond to requests, along with the residency requirement, were “high priorities” for legislative leaders and others who negotiated the bill.

Ultimately, he said, the bill was a compromise and a “good result” for media organizations in the state.

“Those who would let the perfect be the enemy of that good result do not truly understand or appreciate the legislative process, the realities on the ground, or the consequences that would result from taking that position,” he said.

The Society of Professional Journalists' Louisville chapter appreciates that lawmakers had a “productive dialogue” with the state press association about the original proposals in the bill, chapter president and WDRB News reporter Chris Otts said Tuesday.

“We regret that the conversation in Frankfort these days is focused on mitigating the damage to Kentucky’s government transparency laws. Instead, lawmakers should be looking to strengthen them,” Otts said in a statement posted on the SPJ website. “We stand ready to assist any out-of-state journalists who, if this bill becomes law, will no longer be entitled to public records in Kentucky.” 

That followed the Society of Professional Journalists’ Bluegrass chapter raising its concerns Monday about the bill, which it argued would “weaken” the open records law.

The Kentucky League of Cities, which has pushed for changes to the open records law and supports the bill, believes the measure will help city clerks across the state, said J.D. Chaney, the organization's executive director and CEO. 

Chaney said some clerks have reported that one-fourth to one-third of all open records requests are from out-of-state entities seeking to use information for advertising purposes. 

He said it's been "a little surprising" to hear criticism of the cities' association for negotiating and supporting the bill when it trains employees on how to comply with open records and open meetings laws. 

Jim Henderson, executive director of the Kentucky Association of Counties, said his organization wasn’t involved in drafting or negotiating the bill. But the group backs the measure because it “appeared to be a county friendly bill. And so our support for that is purely for counties.”

Henderson, who was the former judge-executive in Simpson County in southern Kentucky, noted that Tennessee has a similar residency requirement for records requests.  

“It seemed reasonable that to limit that to an in-state request would not be unduly burdensome on anybody,” he said.

But the open government coalition argues that those limits would shut out people who live outside of Kentucky and have legitimate reasons for making public records requests, such as someone seeking information about a nursing home for an aging parent, and genealogists and other researchers.  

The bill has not yet been assigned to a Senate committee.

Disclosure: Marcus Green and Chris Otts have worked together, first at The Courier-Journal and now at WDRB, for more than a decade. Otts spoke in his role as Louisville’s SPJ president.

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