Lexington Herald-Leader By John Cheves
February 27, 2019
A Kentucky House panel late Tuesday vastly expanded the scope of a bill to weaken the state’s Open Records Act, adding new sections that would help the legislature shield its own documents from public view and limit the right to file records requests to Kentucky residents.
“I walked into that hearing last night thinking this bill was going to be bad enough, but then they went and made it even worse. They really want a government that operates in darkness,” said Amye Bensenhaver, a former assistant attorney general who is an authority on Kentucky’s open records and open meetings laws.
Originally, House Bill 387 — now headed to the House floor — would have created several additional exemptions in the open records law to conceal information about state economic development incentives offered to companies. This was intended, in part, to thwart open records lawsuits involving public incentives offered to Amazon in Louisville and Braidy Industries in northeastern Kentucky.
A substitute version of the bill, adopted by the House Committee on Economic Development and Workforce Investment, kept that language but added more.
Only Kentucky residents would be eligible to use the Open Records Act, not all people, as the law presently allows.
A much-used exemption to public disclosure for “preliminary” documents would be expanded to include any records in which recommendations are made or opinions are expressed if they “are not incorporated” into a final record. This likely would be used to justify the withholding of many more government documents in the future, and for no legitimate purpose, Bensenhaver said.
People involved in lawsuits with the state could not use the records law to collect documents anymore; they would have to use the discovery process in court.
And decisions about records in the possession of the General Assembly would be decided by the Legislative Research Commission, which is run by the Senate president and House speaker, with no appeal in court possible.