LOUISVILLE, Ky. (WDRB) – Open government advocates rejoiced when Kentucky lawmakers passed Senate Bill 230 earlier this year.
At long last, it appeared that public agencies would start accepting open records requests by email – a change from the state’s longstanding practice of requiring them to be mailed, faxed or delivered in person.
For years, citizens seeking documents on local governments, police departments and other taxpayer-funded entities had to navigate an uneven playing field.
Louisville Metro government and other agencies bucked the law and accepted emailed requests, while Kentucky State Police was among those that didn’t. In those cases, people had to fax or mail their requests – lengthening an already time-consuming process for public information.
While the new law’s intentions were to make government transparency easier, that’s not what is happening.
Some government officials say they aren’t accepting emailed requests, citing their interpretation of the law that took effect in July. The law states that a public agency “may require” an emailed request, but it appears to let agencies decide what method they want to use.
“They could literally say to you: ‘You must submit your request by fax.’ Well, the reality is fax machines are so obsolete at this point that you’d literally be discouraging a lot of legitimate requests,” said Amye Bensenhaver, a former Kentucky assistant attorney general and board member of the Kentucky Open Government Coalition.
In Hopkinsville, Clerk Crissy Fletcher said her city is among those that don’t accept email requests. Many other local governments across the state view the law in the same way, she added.
“It’s permissive,” Fletcher said. “We can accept them through email, but we don’t have to.”
The Kentucky Attorney General’s office appeared to make its own interpretation in a September opinion that noted that the new law “explicitly included e-mail as an authorized means of transmitting an open records request, along with hand delivery, regular mail, and facsimile transmission.”
Regardless, the legislature may revisit the law when it begins in January. The Kentucky League of Cities already is pushing for legislators to amend the open records act “to make compliance easier for cities, particularly in response to electronic submission of applications.”
The league hasn’t specifically laid out its proposal, but deputy executive director J.D. Chaney said there needs to be more clarity on whether open records requests can be sent by email.
City officials also are concerned that allowing email requests from people or organizations outside Kentucky could strain local governments.
“It’s not a push against transparency or openness,” Chaney said. “It’s trying to balance the efficient use of public resources.”
Kentucky State Sen. Wil Schroder, a Republican who sponsored the open records bill, said the intent was to let people send requests by email.
“I think there does need to be some clean up language,” he said.
In addition, he said he has heard the concerns about out-of-state companies inundating local Kentucky governments with emailed records requests. That could result in an approach some states use: Prohibit requests from people or entities outside the state.
“We’re going to have to visit that as well, probably within this, because they’re doing it by email and we’ve kind of opened up the door to allow that,” Schroder said.
“So, I definitely have an appetite to look at this and make sure we get this right, both in transparency and in the people that are actually doing it,” he said. “We don’t want to waste taxpayer dollars.”
Fayette County Clerk Don Blevins Jr. said his office won’t take emailed requests either. While he said he supports the public records law to hold government and elected officials accountable, he has concerns about “frivolous” requests and commercial requests that “are now being used to subvert other fees and laws.”
He also said he would back requirements that limit open records requests to people or entities in Kentucky.
“If we can slow down the silliness part of it and restrict it in those kinds of ways to legitimate open records request, I would be just fine with taking them via email. Not a problem,” he said. “But right now I’m just trying to slow down the stream – as are most officials.”
Since Hopkinsville Police added body cameras in 2015, for example, the city has seen the number of requests nearly double, said Fletcher, the city clerk.
Bowling Green Clerk Ashley Jackson said the city, which allows email submissions, now takes in twice as many open records requests as it did when she began 13 years ago. Among those are a “significant number of out-of-state requesters,” she said.
Bensenhaver, who often authored opinions on open records disputes in the Attorney General’s office, said a residency requirement is a “worst case scenario.”
“There have been lots and lots of legitimate appeals that came to the Attorney General from people who really did need records that reside out of state,” she said.
She agrees the law needs to be changed to address the ambiguity over email requests.
“But,” she said, “if fixing it opens the door to bad legislation that will adversely impacts the public’s rights – by residency requirements by whatever – then I wouldn’t think it would be a very good idea.”