Light appeared at the end of the House Bill 509 tunnel on Friday as the primary sponsor of the bill — which threatened massive damage to the open records law — agreed to re-tool the bill to omit all changes made by the sections redefining “public record.”
Articles published in both the Courier Journal and Lexington Herald-Leader announced Rep. John Hodgson’s decision to “revise” and “overhaul” HB 509, a bill that, among other changes, would have excluded a majority of public records under the expansive nearly five decades-old definition of that term by redefining it.
Later in the day, the bill’s co-sponsor, Rep. Jason Nemes, tweeted in response to criticism of HB 509: “This was an inartfully drawn bill that the sponsor has said will be scrapped because it did much more than he intended it to do.”
This is what we know.
Hodgson, himself a citizen activist before he was elected to the House in 2023, heard from many other activists who expressed concern that public records they had previously obtained would no longer be available under HB 509.
Conservative organizations, in particular Americans for Prosperity, voiced opposition, objecting that “the bill would place many records currently available to the public outside the reach of disclosure, effectively keeping members of the public in the dark about the actions of those who represent them,” and thanked Hodgson for his “willingness to listen” and ” to preserve the public’s right to know what its government is up to.”
These individuals and organizations actively engaged. To this, I can personally attest.
And — we would like to think as we near our fifth anniversary — the Kentucky Open Government Coalition’s voice was heard. Certainly, we provided the input and answers groups and individuals, including Hodgson, sought.
“The Kentucky Open Government Coalition is hopeful that unified voices from the right and the left, from transparency advocates and public officials who see the danger of abridging the public’s right to know, have prompted the sponsors to reconsider HB 509 and to remove the sections of the bill that redefine ‘public record,'” we responded when asked for comment as the day’s events unfolded.
Hodgson, himself, said it best, “My offer was, if you can find a (document) that won’t be disclosable under the new law, I’ll change the language and that is what we’re working on. We don’t want unintended consequences.”
“What’s happening right now, I think it’s positive.”
We agree.
There is much to be learned from this teachable moment. There is a reminder that some issues are wholly bipartisan and that engaged citizens and organizations from across the political spectrum can come together to effect positive change.
There is a lesson that participatory democracy — under siege in these difficult times — is not dead.
And there is a message that elected representatives serve their constituents and must step out of the political echo chamber they occupy to listen to those constituents.
Critics ask why Hodgson would consider filing a revised bill “that changes nothing.”
HB 509 includes two other changes to Kentucky’s open government laws.
HB 509 statutorily requires public agencies to assign all officers, employees, board members, and commission members a public agency email address. The current language of the “scrapped” bill includes a dangerous “carve out” for “specific personnel whose job functions and responsibilities are not compatible with, or do not require, the use of an agency-furnished email account.” To avoid agency abuse, this language should be tightened to include legal parameters for such designation.
And the promised revision of HB 509 to eliminate all sections that redefine “public record” must ensure that •all• previously enacted exemptions are restored to their original statutory place in KRS 61.878(1) and that •none• of the unvetted exemptions, originally included in the sections redefining “public record,” are added to that list.
Otherwise, mandating assignment of public email addresses — something that should already be standard operating procedure in every public agency — does no harm.
The second inoffensive change, found on page 14 of the current bill amends the open meetings provision found at KRS 61.848(5). That statute currently authorizes courts to void any formal agency action taken “without substantial compliance” with key provisions of the open meetings law, such as adequately noticing special meetings and conducting only statutorily authorized closed meetings.
HB 509 adds to this list of key open meetings requirements formal action taken by an agency without substantial compliance with KRS 61.840. The latter statute prohibits public agencies from imposing “conditions other than those required for the maintenance of order” on attendance at any meeting. It also requires agencies to “provide meeting room conditions, including adequate space, seating, and acoustics, which insofar as is feasible allow effective public observation of the public meetings.”
If this section is retained, courts will be empowered to void actions taken at meetings conducted by public agencies that impose conditions on attendance and/or fail to provide meeting room conditions that include adequate space, seating, and acoustics.”
We hear the voices of citizen activists here as well — all good from our perspective.
To whomever credit is due — and reserving final judgment until a new bill draft is filed — the Kentucky Open Government Coalition firmly believes that it is the public that should “declare victory and depart the field,” (but stand by, poised to return to the field should lawmakers fumble).
Remain vigilant until we know the final score but celebrate, for now, the win for open government and participatory democracy.
Amye Bensenhaver spent 25 years as an assistant attorney general in Frankfort and is an expert on open records and open meetings. Now out of state government, she writes about these issues. Bensenhaver is a co-founder of the Kentucky Open Government Coalition with Jennifer P. Brown, who is the editor of Hoptown Chronicle.
