Just how far a handful of prominent Kentucky legislators have retreated from the policies supporting the commonwealth’s 50-year-old open government laws, and the taxpayers’ right to know how laws affecting their wallets are made, is painfully obvious in Kentucky Public Radio statehouse reporter Joe Sonka’s Aug. 1 examination of “confidential” fiscal notes secreted away from the public (and from most other lawmakers) by this exalted few.
“The people of this commonwealth,” the framers of our open government laws wrote in stirring language, “do not yield their sovereignty to the agencies which serve them; the people, in delegating authority, do not give their public servants the right to decide what is good for them to know; the people insist on remaining informed so they may retain control over the instruments that they have created.”
Nerts to that, says Senate President Robert Stivers, in so many words. He unapologetically “defend[s] Kentucky’s outlier policy of not requiring fiscal notes for bills, saying they could create ‘quicksand’ for bills leadership wants to move, ‘especially late in the session.’
“’I don’t want to create such a bureaucracy and to slow something down when we really need to get something moved,’ Stivers said.”
Now there’s a convincing explanation for eliminating a critical step in the legislative process.
“Bureaucracy,” is code, in this context, for informed legislative decision makers who are preparing to cast their votes and equally informed taxpayers who will ultimately foot the bill. It is these hand wringers who might pump the brakes on bills whose costs to the commonwealth exceed their benefits.
A fiscal note, Sonka explains, is the Legislative Research Commission estimate of “how a bill will affect state government revenues and expenditures. [Fiscal notes] are not required under Kentucky law or the rules of either chamber for a bill to advance — let alone required to be made public, when requested and produced.”
He identifies, as an example, 2022’s House Bill 8, “which set up a process to incrementally cut the state’s individual income tax until it is eliminated.
“When HB 8 was before the House budget committee, there was already a fiscal note posted online for an outdated version of the bill, but not the significantly amended version they were voting on.
“House Bill 8 would pass into law later that month, but the LRC never published the confidential fiscal note that was completed for the final version of the bill that same day, which detailed an estimated loss of $888 million of state revenue over the following two fiscal years.”
Be prepared, says departing Sen. Whitney Westerfield, for the fiscal fallout from 2024’s House Bill 5. The “wide-ranging anti-crime bill that passed into law” first emerged from the House of Representatives with no fiscal note and, when one was demanded by Senate Judiciary Committee Chairman Westerfield, was returned with a state cost of “indeterminable.”
“Responding to GOP senators who were saying they didn’t care what the price tag of HB 5 was because it was so important, Westerfield [,who voted against it,] said “well, if you don’t care, put it out there. Own it. And when the bill comes due, pay it.”
The actual scope of this secretive practice is not known because it is … well … a secret.
Sonka reports:
“KPR first discovered one of these confidential fiscal note statements — appearing just like normal ones, only labeled “CONFIDENTIAL” at the top and bottom in red ink — in June. We have subsequently obtained copies of more than 20 other fiscal notes marked confidential in the same format for bills that passed into law in 2021, 2022, 2023 and 2024, which were not posted on the bills’ webpages. There are likely many more.”
But “[t]he LRC denied an open records request for such documents from the 2024 legislative session and would not even reveal how many were being withheld. Greg Woosley, the general counsel of the LRC, wrote that ‘any confidential background or other research materials prepared by LRC staff for members of the General Assembly’ are not public records under state law.”
Woosley is disturbingly correct. Under a self-interested and self-serving law enacted by the General Assembly in 2021, lawmakers excluded both themselves and their administrative staff at the Legislative Research Commission from the open records law. They insulated their denials of records requests from judicial review under their heavily diluted version of a public records law — for good measure.
Passage of the bill exempting state lawmakers and their administrative staff, codified at KRS 7.119, was the single greatest act of legislative hubris — and there are so many from which to choose — in memory.
Until now.
Why is the General Assembly’s confidential fiscal note practice, at least arguably, an even greater affront?
It is because the policy was a secret not just from Kentucky’s taxpayers but also from all but a handful of elected Kentucky legislators — that is until Sonka undertook his examination of the deplorable practice.
“Just three of the 30-plus legislators asked,” Sonka reports, “said they had heard of confidential fiscal notes for filed bills, including Republican Senate President Robert Stivers.
“Not a single Democratic legislator indicated they had heard of confidential fiscal notes for filed bills, but one learned that she had received two of them without requesting they be marked as such.”
Why were so many legislators unaware of the confidential fiscal note process?
“Stivers said it’s possible he and other legislative leaders should have done a better job communicating,” Sonka writes.
“’Maybe that’s incumbent on me to educate them more,’ Stivers said. ‘Because that really should be my role, to make sure everybody knows what the process is.'”
No worries, President Stivers, Kentucky Public Radio did your work for you — and better than you would have done it.
After all, it is you and your coterie who ultimately “decide what is good for [other Kentucky legislators, as well as Kentucky taxpayers to know” and, just as importantly, what is not good for other legislators and taxpayers to know.
Once again, Kentucky stands nearly alone in legislative arrogance at the highest level to advance an agenda — with reckless disregard for the cost — and at the expense of informed elected representatives as well as taxpayers — both figuratively and literally.
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.
