Column by Jon Fleischaker and Michael Abate
Repeatedly in recent weeks, Governor Andy Beshear has come out in favor of HB 509, a bill that would dramatically weaken Kentucky’s Open Records laws. The Governor has tried to assure citizens the bill would result in more transparency, not less. The Governor is wrong; this bill will inevitably lead to the public’s business being done in private.
The Governor’s argument that the bill does more good than harm doesn’t hold water. HB 509 may not be as bad as it once was – thanks to public outcry over the havoc the original version of the bill would have wrought – but it still would create a glaring loophole allowing public officials and employees (like the Governor and those who work in his administration) to easily hide their work from the public.
You don’t need to be a lawyer to see why this bill is so dangerous. HB 509 requires public agencies to create email accounts for all public officials and employees. That’s a good step that closes a relatively small loophole that exists in the law today. Also laudable is the bill’s requirement that officials and employees only use their public email accounts, and not personal emails.
But HB 509 then does an abrupt about-face that renders these modest improvements hollow gestures. For the first time ever, the law would limit where an agency needs to search for responsive records. An agency that creates these new email accounts only needs to search those accounts, or other publicly owned devices, for responsive electronic records. All other communication channels may be ignored by public agencies responding to records requests.
Do you know anyone who communicates only by email in 2024? Of course not. Public employees, like all people, use a variety of platforms to do the public’s business—texts, other messaging apps, collaboration tools, private social media messages, and more. Even though all records belong to the public under current law if they are discussing public business – as Attorney General Andy Beshear repeatedly ruled – they will become effectively off limits if the bill is passed and signed into law. What do you think public officials and employees are going to do if they would prefer not to have their decisions second-guessed? You got it; they will simply communicate by means other than their work email. And contrary to what some of HB 509’s proponents have said, nothing in the bill prohibits that.
What is the Governor’s response to this criticism? At a recent press conference, he began by appealing to his own reputation for transparency. Sorry, Governor – “trust me” does not explain away a loophole so glaring any middle schooler could exploit it. Nor will it prevent the public from justifiably considering you the one who destroyed Kentucky’s long tradition of openness if this bill becomes law.
Next, the Governor points out that someone intent on shielding communications won’t turn over their texts or direct messages anyway. But that’s why we have an Attorney General appeal process and judicial oversight. We don’t repeal our criminal laws because criminals are likely to break them, do we?
Finally, the Governor accuses the authors of this piece (one of whom helped write the law) of not understanding how the Open Records Act really works. That ad hominem attack is a tell that the Governor knows his position doesn’t [add] up for the public. And it should force us to ask some necessary, though uncomfortable, questions: Why does Governor Beshear disagree with Attorney General Beshear? What text messages are the Governor and his administration trying to hide? Is he selling out Kentucky’s transparency laws to make it easier to seek a national platform?
The brilliance of Kentucky’s Open Records Act is that it never made the public’s right to access its records dependent on the technology used to create a record or the place where it is stored. Rather, the Act’s drafters made all records available so long as they concern the public’s business. Now is the wrong time to reverse course and use a technology increasingly shunned by future generations to limit the public’s right to access its records. The inevitable outcome of such a law is that the public’s business will be done through “private” channels. The public must speak out against this bill, or it will forever lose the right to supervise its public servants.
Jon Fleischaker and Michael Abate are media law and First Amendment experts who serve as General Counsel to the Kentucky Press Association. They practice at the law firm of Kaplan Johnson Abate & Bird LLP, where they regularly litigate Open Records and First Amendment disputes across the Commonwealth. Fleischaker was among the original authors of the state’s Open Records and Open Meetings Acts.
