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AS WE SEE IT: Extra hoops to transparency

Most of you probably didn’t notice, but the Kentucky House made some changes to open records requests rules last week that give government departments an extra couple of days to respond to record requests, among other changes.

In addition to extending response time from three days to five days before a department has to decide how to respond to a records request, the bill amends the definition of a resident of the Commonwealth; amends the KRS to permit any resident to request public records through fax, mail, email, or hand delivery; requires a public agency to display a copy of a record request application form in a prominent location and/or on its website; sets prohibitions on the Finance and Administration Cabinet “promulgating administrative regulations pertaining to public records requests for the Legislative Research Commission or Administrative Office of the Courts”; requires the Attorney General to promulgate… a form to be used for any public records request; amend KRS 61.878 to exempt all public records or information prohibited by state law from the Open Records Act; exempt any client or case files maintained by the Department of Public Advocacy, or any entity contracting with them for purpose of legal representation, from requests; amend KRS 7.119 to permit any resident of the state to request or inspect records in the custody of the Legislative Research Commission or the General Assembly; require the director of the Legislative Research Commission to determine whether to comply with a public records request within five days; require the director of the LRC to notify the requester of their decision in writing; sets rules related to denying documents; and requires the LRC to notify any member of the General Assembly of requests for information pertaining to them within one day and to notify the director of the LRC of any requests pertaining to their department within two days; etc. 

It’s a lot, and you’d be forgiven if most of it doesn’t mean much to you. It means a lot more to journalists and watch dog groups or others who might request public records for their job. For journalists working on deadline the extension from three to five days to respond could make the difference between a story being timely or old news. 

The difference between the response time required on a records request, five days, and the time required before reporting a request to a member of the General Assembly, one day, also gives legislators extra time to prepare for any potential fallout related to a records request as well – up to two more days than the previous three days allowed. 

Despite these additional challenges to journalists, the Kentucky Press Association (KPA) didn’t voice any opposition to the changes. The KPA has taken some criticism for this, but called the lack of action a “compromise” that helped preserve critical access and prevented stronger restrictions to access. 

“The bill is the culmination of nearly two years’ worth of good-faith negotiations between… legislative leadership, the Kentucky League of Cities (KLC), and KPA,” the press association said in a release. “Over that period, the parties worked in good faith to craft a bill that satisfied each groups’ critical priorities.” 

For the KPA those priorities were, “on ensuring that its members, and the communities they serve, will continue to have robust access to the records of the public agencies that served them.” 

Other KPA supported changes included mandatory acceptance of emailed request and a standardized request form that may be submitted to any state public agency. 

While the KPA acknowledged criticism of the bill, particularly the lengthening of the response deadline to five days and the new residency requirement, stating they, “would have preferred not to amend the law in these ways,” that, they said, “was not a viable option.” 

“These changes were high priorities for others involved in the negotiation, including legislative leaders,” the KPA statement read. 

“By agreeing not to oppose certain amendments, KPA was able to prevent other changes to the Open Records Law that really would have done with critics claim HB312 does: devastated the public’s right to know critical information about the state.” 

One provision the KPA successfully fought would have created a new definition of “preliminary” records that would have “upended decades of precedent” and made it easier for agencies to avoid disclosures. Another, “would have prevented the public from knowing how economic development incentives are being doled out.”

While it remains to be seen if these compromises will have a cumulative negative effect on the ability of news organizations to access records, at this point the KPA believes they have acted in the best benefit of their member papers and the Kentucky public. 

For now we’ll trust their judgment, but we will also keep our eye on this issue moving forward and advocate in the best interest of our readers and our community, regardless of the KPA stance. 

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