State Sen. Danny Carroll, a Paducah Republican, has pre-filed a bill that critics said Monday would “eviscerate” Kentucky open records law by restricting access to a host of public material.
“This is an effort to destroy the open records law,” said Jon Fleischaker, a lawyer for the Kentucky Press Association, the Courier Journal and other media outlets. “It is a disaster for the public. It is a disaster for the citizens of Kentucky.”
The measure would create a new section of state law that exempts whole categories of records from public inspection — most significantly, any information related to “promotion, appraisal and employee discipline records” of police and many other public employees.
Carroll said in an interview Monday he had no intent of restricting access to most public records.
Instead, he said, the bill is designed to protect confidential information of public employees such as police, firefighters, judges and social service professionals who might experience retaliation.
“The intent is to protect the personal information of folks for safety issues,” said Carroll, a former Paducah police officer and co-chairman of the legislative Program Review and Investigations Committee.
He acknowledged the law already allows agencies to redact some information, such as addresses or Social Security numbers, but he said he isn’t sure that is always done. Carroll said he would be willing to revise the bill based on concerns about open records.
“I really don’t see anything unreasonable about the intent of this but there may be some language in this that needs to be adjusted,” he said.
The bill would impose penalties of up to $500 per violation on any public official who violates the proposed law by wrongly releasing information, adding a new twist to state law that allows sanctions only for agencies that withhold public records. And it’s a far harsher penalty than current law, which calls for fines of up to $25 a day for a public agency that wrongly withholds information.
It would allow agencies to withhold information that would constitute an “unwarranted invasion of personal privacy.”
It would allow judges to decide whether an individual sought public material for an “improper” or frivolous” purpose and, if so, allow the judge to force the person seeking the information to pay the agency’s legal fees in the event of a court challenge.
That undercuts a basic provision of state open records law that says citizens do not have to justify or explain their purpose in seeking public records, said Michael Abate, who works with Fleischaker on open records cases.
“The law is quite clear,” Abate said. “The purpose for seeking a public record is irrelevant.”
The proposed bill, filed Dec. 14, has raised concern among others familiar with Kentucky’s Open Records Law, including Amye Bensenhaver, a former lawyer with the Kentucky attorney general who specialized in open records opinions.
Bensenhaver, who retired from the attorney general’s office in 2016, called the proposed bill “really threatening to the public’s right to know.”
“What in the world would have prompted this?” Bensenhaver asked. “That’s what I don’t know.”
Sen. Morgan McGarvey, a Democrat from Louisville and a lawyer, said he was surprised and concerned by the proposed law.
“It’s astounding,” he said. “We need bills that encourage more transparency and accountability, not less.”
Carroll said he agrees and will work with others interested to make any necessary adjustments to the bill.
“We do need to be very careful about transparency and I am absolutely in support of that,” he said.
Fleischaker, who helped write the current open records law the state adopted in 1976, said the proposal would bar disclosure of key public documents the Courier Journal and other media outlets have obtained to detail Louisville’s police Explorer scandal involving sexual abuse of youths.
It would limit access to allegations of sexual harassment by state employees, records the Courier Journal and the Kentucky Center for Investigative Reporting are seeking through a court fight. Three state agencies have refused to release names of accused employees. They say the employees were cleared by a state investigation and release of the names would violate their privacy.
It also would bar access to many Cabinet for Health and Family Services records involving child deaths from abuse and neglect. Those documents are now public record, following an extensive legal battle by the Courier Journal and the Lexington Herald Leader to obtain such information. The news organizations sued to obtain the material during the administration of former Gov. Steve Beshear.
Gov. Matt Bevin, his successor, in 2016 agreed to settle the lawsuit by releasing the records and paying the newspapers nearly $700,000 in fines and legal fees. A Bevin spokeswoman at the time criticized the Beshear administration for a “lack of transparency and disregard for an open government.”
“In the Bevin administration things are very different — we will hold ourselves accountable and be accessible to the public, particularly regarding the most vulnerable members of society,” spokeswoman Jessica Ditto said in a 2016 statement.
Fleischaker said Carroll’s proposed bill would eliminate openness and accountability.
“It’s an effort to eviscerate the law,” he said. “It’s done to protect law enforcement when members may be accused of wrongdoing and in fact have done wrong.”