Privacy concerns smokescreen to hide public business • Kentucky Lantern

FRANKFORT — Dating back to the Neolithic era when public records were created on IBM Selectric typewriters, long before text messages, email, cell phones and computers small enough to fit in your wallet, Kentucky's Open Records Act protected the privacy of individuals.

Kentucky's open records law still protects individual privacy.

Because of open records laws, no one is at risk of having their shopping lists, porn searches, and marital discord stolen from their cell phones and broadcast publicly.

(I'm not saying that the private content you type on your device can't come back and haunt you in public. I'm saying it's not because of open records laws.)

Due to open records laws, his cell phone, computer, or box hidden in his basement were never seized or searched. Or maybe it will continue to be so.

Multiple layers of screening built into the law prevent disclosure of personal information.

Rep. John Hodgson, the sponsor of House Bill 509, may have genuine concerns that the Sunshine Act has a “dark side.”

Other members of Congress know better. Concerns about personal privacy are a smokescreen.

And where there's a smokescreen, there's usually something people need to see, something they need to know about their government, their community, their future.

HB 509 is a wink and a nod, tacitly allowing public employees to use their personal devices if they wish to conduct official business in private, but only among insiders. The rest of the time, you will use your officially issued email account. There's nothing in HB 509 to stop that, nothing to give citizens the right to access public records on their personal devices.

You could argue, like Gov. Andy Beshear, that “bad actors” won't hand over information they want to hide, even if required by law. That may be true, but HB 509 is a stamped invitation to hide public records. Under current law, there are penalties for intentionally concealing official documents. HB 509 does not.

As Republican Sen. Jex Williams said, even if privacy concerns are real, HB 509 fails to address “the need for public records, government records, to be available to the public.”

Open government laws target everyone, not just the press. We hope the Kentucky Senate and Governor Andy Beshear will see the light of public accountability and reject this attack on a law that has served Kentucky well for 50 years.

In hopes of reassuring and keeping you informed, I asked two of the state's top authorities on open government laws and the First Amendment: Amy Bensenhaver of the Kentucky Open Government Coalition and the Kentucky Press Association. I asked attorney Michael Abert a few questions.

I'm combining, summarizing, and paraphrasing their answers, so please apologize in advance if I'm leaving out too much.

Question: How does the Kentucky Open Records Act protect personal communications and personal information?

Answer: The law states that “public records that contain information of a personal nature, the release of which would be a clearly unreasonable invasion of personal privacy'' and “[c]Communications of a purely personal nature unrelated to any government function. ” The last exception was added just a few years ago, the last time was when lawmakers tried to exempt all “private” emails and texts from disclosure. This shows that HB 509 is not actually aimed at protecting “private” information, but rather at protecting records from public view.

The law also exempts “correspondence to private persons, except for letters intended to notify final actions of public authorities.”

Q: What happens under current law when a requester seeks public records that may be on a personal account or personal device?

A: Government agencies have records managers. The administrator will ask the relevant employee or official to locate and hand over the requested records. Employees or officials check their desks, file cabinets, public and personal devices. The publishing server is searched for response records. The law has never required or envisaged records custodians to search through desk drawers and equipment or conduct “fishing expeditions.”

Q: What do Kentucky courts say about public records on personal devices?

A: Courts have consistently held for decades that the content and purpose of a record, not the location where it is stored, determines whether the record can be viewed by the public.

Q: Under current law, are elected officials and public employees required to surrender their personal devices for testing?

A: No. They will be expected to share copies of requested public records from their devices, but the devices will remain their property. Judge J. Christopher McNeil of the Kentucky Court of Appeals asked this question in a recent challenge to open records laws by the Kentucky Department of Fish and Wildlife Resources. In this case, a citizen filed a public records request for those records because he believed the commissioner was conducting official communications under his personal account. The Court of Appeals ruled that messages between commissioners related to official business are public records, even if they are on personal devices. “Kentucky's Open Records Act requires public agencies to turn over private cell phones or, under today's ruling, all public records generated by private cell phones,” McNeil wrote in a concurring opinion. “We hope to allay concerns that the burden of identifying and creating a policy will be placed on government agencies.” or a private email account. We believe that our opinion is simply “texting”. [or emails] Stored on personal mobile phones in connection with commission work [or personal email accounts] KDFRW has appealed this decision to the Supreme Court, but the Supreme Court has not yet decided whether to hear the case.

Q: Are messages sent by voters to members of Congress through the General Assembly's 800 number or email account subject to disclosure under the Open Records Act?

A: No.

Q: How can HB 509 be amended to better protect the public's right to know?

A: There are at least two simple amendments proposed to this bill. First, if government records search obligations are limited to public devices and email accounts, public officials and employees should be prohibited from discussing public affairs through other means. Nothing in HB 509 prevents officials and employees from communicating using text, messaging apps, collaboration software, and more. The bill simply says that if you have a government email, you should not use your private email.

Second, the bill should make clear that individuals who violate this requirement must personally respond to open records requests, even if the agency is not required to do so.

Q: Is there anything else?
A: The loophole created by HB 509 is easily discovered and exploited. And the problem will only get worse over time, as email becomes less and less important as a means of communication. The continued denial of these realities by some of HB 509's supporters suggests that they must be more concerned about concealing records than making them available to the public.