- Associated Press - Wednesday, March 10, 2021

FRANKFORT, Ky. (AP) - Kentucky lawmakers made changes Wednesday to a measure denounced by many media outlets as an attempt to weaken the open records law. An open government advocate said the improvements still leave potential problems for some in gaining access to public records.

A Senate committee advanced the House-passed measure after amending it, sending it to the full Senate. The panel loosened residency requirements in order to make records requests. Another key change allows continued access to Kentucky public records by out-of-state media organizations.

But other sections of the bill remained unchanged. It still gives lawmakers the ability to deny requests for legislative records without risk of a court appeal - essentially giving the legislature the last word. It also still increases the time for agencies to turn over public records, from three to five days.

“The revised bill is better but contains some language that will inevitably lead to confusion and legal challenge,” open records advocate Amye Bensenhaver said after the committee meeting.

Removing the right to appeal a denial of legislative records is “deeply troubling,” said Bensenhaver, a former assistant attorney general who helped start the Kentucky Open Government Coalition.

The bill would remove the opportunity to appeal a denial of legislative records to Franklin County Circuit Court. Instead, appeals would be heard by a panel of legislative leadership from both parties.

Republican Sen. Adrienne Southworth said she wanted to delve into that part of the bill, but the committee voted to advance it without discussing those sections.

“That’s really actually upsetting, that we’re the legislature and we can’t talk about legislative records,” said Southworth, one of two committee members to vote against the bill.

Supporters say the bill is meant to keep public agencies from being overburdened by open records requests from out-of-state sources. Responding to those requests saps staff time and costs money, they say. Bensenhaver questioned whether the bill would accomplish those goals.

A number of groups and individuals, including The Associated Press, co-signed a letter from the Open Government Coalition warning the bill would “create unneeded and unwanted impediments to public access” and would not ease the burden on public agencies. The letter went to Senate leaders.

During the Senate committee hearing, Bensenhaver praised some of the changes to the bill.

Expanding the residency definition to cover more people was “tremendously important,” she said. She also praised the change to exempt out-of-state media organizations from the residency requirement. The previous version would have restricted access to public records to Kentucky residents. The Senate panel removed the restriction on people who work or own property in Kentucky and exempted news organizations from the residency requirement.

But language in the bill requiring records seekers to confirm their Kentucky residency could cause “discomfort for people who genuinely have good intentions,” Bensenhaver said. She described the “human toll” it could take, citing the example of someone wanting to review nursing home records.

Bensenhaver’s testimony was cut short after several minutes when the committee decided to vote on the bill. Committee Chairman Robby Mills apologized but noted that lawmakers were on a tight schedule and the committee had received written comments from her.

Mills signaled that more amendments to the bill might be forthcoming.

If it clears the Senate, the amended version would have to return to the House for another vote. Lawmakers have six days left in the 2021 session.


The legislation is House Bill 312.

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