Legislation that proposes new restrictions to the commonwealth’s open records law would make Kentucky one of only a handful of states that prevents nonresidents from obtaining public documents there, according to national experts.
House Bill 387 started out as a proposal to limit citizens’ access to records related to businesses seeking financial incentives from the government for projects that could boost economic development and job creation in Kentucky, but then a legislative committee approved new restrictions to it, including the residency requirement.
Most states allow people to request and access public records regardless of where they live, according to Lucy Dalglish, dean of the Philip Merrill College of Journalism at the University of Maryland. However, several states — including Tennessee and Arkansas — do limit access to people who reside within their borders.
The U.S. Supreme Court has ruled that such residency requirements are permissible, Dalglish said. However, she criticized these rules for limiting the ability of reporters and other citizens to obtain data on how the same issues are handled in different states.
“From my standpoint as a journalist, what always bothered me … was they made it almost impossible for you to do an investigative story where you want to gather information and tell a comprehensive story about the way things are nationwide,” Dalglish said.
“And that’s really the biggest problem with statutes like this is you become little isolated islands of information, and citizens have very little ability to compare themselves to others,” she added.
House Bill 387’s sponsor, Republican state Rep. Jason Petrie of Elkton, has indicated that he believes the purpose of Kentucky’s open records law is to provide transparency solely to the citizens of the commonwealth.
“What’s the purpose of the open records? Is it to be open and transparent to the rest of the world? Or is it to be open and transparent to the people residing in Kentucky? I think it’s the latter, not the former,” he said recently, according to the Associated Press.
Petrie did not respond to requests for comment sent Thursday and Friday.
His bill was cleared, along with the newly added restrictions, by the Kentucky House of Representatives’ Economic Development and Workforce Investment Committee and could come up for a vote in the full House this week.
If House lawmakers approve it, the bill would head to the state Senate for consideration.
Adam Marshall, a staff attorney for the Reporters Committee for Freedom of the Press, said residency requirements disproportionately affect journalists.
“It’s frequently the case that reporters or news media outlets that might be national or might be just across the border from a state do really important reporting that can bring to light actions or activities of local and state entities, and neither the people of Kentucky nor the people of the United States should be deprived of that access through this citizenship requirement,” he said.
Marshall noted that reporters and other citizens can and will find ways to get around such rules by finding a state resident willing to request records for them.
“It just has the effect of throwing up an extra hurdle between the public and the information that they are entitled to,” he said.
Dalglish pointed out that news organizations aren’t the only ones who rely on public records. Businesses are big users of open records laws, and individual citizens who don’t work as journalists regularly request government documents, too.
If state lawmakers approve HB 387, Dalglish said Kentucky — which she has never considered to be among the worst states in terms of its open records law — would be headed in the wrong direction.
“They’d be on their way to the basement as far as transparency goes,” she said.
Another provision in HB 387 would ensure the Legislative Research Commission — which is made up of House and Senate leaders — gets the final say on whether legislative records should be released and limit citizens’ ability to appeal its decisions to withhold records in court.
The Legislative Research Commission is involved in a legal battle over documents that concern a 2015 sexual harassment complaint against a state legislator. The Lexington Herald-Leader has sued for access to those records.
Kevin Goldberg, legal counsel for the American Society of News Editors, said the legislative-related provision in HB 387 precludes an independent, objective review of whether documents that detail state lawmakers’ actions should be made public.
“Make no mistake: This is an assault on transparency,” Goldberg said of the proposed bill. “My first reaction if I were a resident of Kentucky is ‘What are they trying to hide?’”
Goldberg said states where the same party controls the legislative and executive branches tend to see rollbacks on public records access. That’s the case in Kentucky, where the GOP has dominated both chambers of the legislature as well as the governor’s office since the 2016 election.
“It is more likely that you will find restrictions on open government when there’s one party in power,” he said.
Republicans aren’t the only politicians pushing for new restrictions, according to Dan Bevarly, executive director of the National Freedom of Information Coalition. Democrats have done the same when they’re in control.
Nationwide, Bevarly said his organization has seen a trend toward less transparency at the state and local level as governments increase the number of exemptions to their open records laws and increase the fees people have to pay to access records.
In Kentucky, Bevarly — who grew up in Louisville — said it’s alarming that an entire branch of government could make the kind of exception for itself that state lawmakers have proposed with HB 387.
“It’s really scary what the state legislature is doing here,” he said.