Ethermac|Media attorney warns advancing bill would create ‘giant loophole’ in Kentucky’s open records law

FRANKFORT,Ethermac Ky. (AP) — Legislation advanced by Kentucky lawmakers on Wednesday would carve out a “giant loophole” in the state’s open records law that would enable public officials to evade scrutiny, a media attorney says.

The measure was approved by the Senate State and Local Government Committee, sending it to the full Senate for what looms as a climactic vote for final passage. Republican state Rep. John Hodgson said his bill is meant to balance transparency of government business with the privacy rights of public officials.

Michael Abate, an attorney for the Kentucky Press Association, flatly warned that the measure would enable people to subvert the open records law. It would allow public officials to conduct business by text messaging or emails on personal devices. But he said the use of those devices would let them avoid public transparency because the agency would not have to search for the information.

“It creates a giant loophole and it encourages people to walk right through it,” Abate told reporters after the committee meeting. “There’s nothing in the bill that just passed the committee that prohibits the use of text messages on personal devices to avoid transparency.”

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He cited the busing meltdown at the start of the school year in the Jefferson County public school district — the state’s largest — as an example, noting that many district officials texted each other.

The open records law allows the public to scrutinize documents exposing the workings of government.

As bad as the bill is for that decades-old law, a proposed substitute version would have been dramatically worse, Abate said.

The last-minute substitute was approved Wednesday by the Senate committee at the outset of its review of the legislation. But after hearing opposition from multiple groups, the committee reversed course and dropped the substitute version — a rarity in committee meetings.

Abate warned that the substitute would have exempted every elected official in Kentucky — from the governor to local city council and school board members — from the open records law.

The committee ultimately left the bill unchanged, reflecting the version that passed the House earlier this month. Republicans have supermajorities in both chambers.

The measure would update provisions of the open records law that were crafted long before the advent of emails, text messages and other forms of electronic communication.

It would require public agencies to designate email accounts for use for official business, and their employees would be required to use those accounts to conduct business, Hodgson said. Failure to comply could result in disciplinary action that could reach termination, he said.

As a citizen activist before becoming a lawmaker, Hodgson said he has used the open records process and believes in it. He said his bill straddles the “fault line” between the public’s right to information and the right to privacy for public officials.

“Even elected officials have a right to a personal life and personal privacy,” he told the committee.

In his response, Abate said: “I understand the desire to create email accounts. I think that’s a good thing. But on balance, this law doesn’t enhance transparency, it destroys it.”

Speaking to reporters later, Abate pointed to a “glaring loophole” in the legislation that he said would allow officials’ communications to evade public review with no repercussions.

“The bill says nothing about what happens if you avoid this law by texting or emailing some other way,” he said. “There’s no punishment for that. It’s only if you use a personal email when you’re given a government email.

“So you could use any number of other communication devices. That’s perfectly legal under the bill,” he added. “And the agency would never have to search or even ask you if you communicated that way if somebody requests those records.”