Open government advocate still has concerns over revised open records bill passed by Kentucky House

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FRANKFORT, Ky. (AP) — A closely scrutinized open-records measure dealing with public access to the flow of electronic messages among government officials won passage in the Kentucky House on Tuesday.

The bill’s lead sponsor, Republican state Rep. John Hodgson, backed off the original version that had spurred a strong backlash from open-records advocates.

Those advocates have warned that the revised version still contained loopholes that would hurt the public’s ability to scrutinize government business.

It would do so by limiting a public agency’s duty for producing electronic information, applying only to material stored on a device that’s “agency property or on agency-designated email accounts,” open government advocate Amye Bensenhaver said in an email after the House vote.

The new version of House Bill 509 cleared the House on a 61-31 vote to advance to the Senate. Republicans have supermajorities in both chambers.

It would update provisions of Kentucky’s open records law that were crafted long before the advent of emails, text messages and other forms of electronic communication, Hodgson said.

“This bill attempts to close a gap that has been created in the subsequent decades by requiring that the tens of thousands of people that work for public agencies, or serve as appointed board members in some capacity, have an agency-furnished or an agency-designated email provided for them, so that they can conduct their official business with those searchable electronic platforms,” Hodgson said.

Hodgson has said he is trying to balance the need for transparency with the need for personal privacy.

Public officials could be punished for using non-public email accounts for official business under the bill. But open-records advocates have said that is not enough because there is no guarantee that those records would be subject to the state’s open records law.

“Until this bill gained traction, the overwhelming weight of authority focused on the nature and content of a record, not on the place it is stored, to determine its status as a public record governed by the open records law,” said Bensenhaver, a former assistant attorney general who helped start the Kentucky Open Government Coalition.

“HB 509 passed out of the House with the goal of upending that analysis and reversing that authority,” she added.