Appropriately, the sun is shining brightly in Kentucky on the first day of Sunshine Week 2024, the nation’s annual celebration of the value of public records and open government laws that ensure the public’s access to them. But, once again, all is not happy and bright in the Commonwealth.
As someone who knows a good deal about Kentucky’s open records and open meetings laws — having served as an assistant attorney general, authoring open records and open meetings decisions from 1991 to 2016, and as co-director of Kentucky’s Open Government Coalition from its establishment in 2019, closely following developments in the laws — I am often asked by reporters: “Why are open government laws important to the public?”
They ask, no doubt, as a way of broadening public understanding and appreciation of the laws when a high profile records request is denied, a public agency engages in a pattern of noncompliance with the open, or new laws are introduced — some enacted — that threaten well established public rights of access to public records and public meetings.
Amye Bensenhaver
It is a difficult question for someone who has been immersed in open government for 30 plus years and who views the laws’ importance as self-evident and unassailable. It is a part of my DNA.
How can I explain the importance of these laws? Where do I even begin?
I’ll leave that to another Kentuckian, one who served on the United States Supreme Court from 1916 to 1939, Justice Louis Brandeis.
It was Brandeis who offered the best — and certainly most concise — answer. He famously observed that sunlight “is the best of disinfectants” in a 1913 Harper’s Weekly article, entitled “What Publicity Can Do.”
In Brandeis‘s day, a scholar tell us, publicity “referred both to something like what we think of as ‘public relations’ as well to the practice of making information widely available to the public.”
“That latter definition,” the same scholar notes, “sounds a lot like what we now mean by transparency.”
In 1992, the Kentucky Supreme Court echoed Brandeis, declaring that “inspection of records may reveal whether public servants are indeed serving the public, and the policy of disclosure provides impetus for an agency steadfastly to pursue the public good.”
Open government — Kentuckians, with the exception of many of their elected officials, know — is not the exclusive domain of Republicans or Democrats. It is an ideal — made a legally enforceable reality through the passage of the Kentucky open records and open meetings laws in the seventies — and cherished equally by those on the far left, by those on the far right, and by everyone in between.
Still, the words of elected officials who give lip service to the importance of “transparency and accountability” — as they annually chip away at that cherished legal right — bounce unconvincingly off the walls of the secret portals and passages of the third floor of the Capitol in Frankfort.
Only those elected officials fail to understand — or, at least, to respect — that the broad support for Kentucky’s open government laws is nonpartisan and that they insult the public will with each new unjustified and unneeded “revision” of the law in the guise of a “clarification” or “modernization.”
Recent history confirms that if existing open government laws do not support state lawmakers’ anti-transparency agenda — or cause them inconvenience or embarrassment — they change the law.
This is what the General Assembly did in 2021 when it excluded itself and the Legislative Research Commission from the open records law after the Kentucky Supreme Court ruled that the records of both public agencies belong to the public and are governed by the open records law.
This is what the General Assembly is attempting to do in the current legislative session by restricting public agency “search and production” of public records to those stored on public devices and accounts after the Kentucky Court of Appeals last year ruled that “text messages stored on personal cell phones are public records when such messages are prepared by or used by the members of the [public agency] and relate to or concern [public agency] business. To hold otherwise would certainly defeat the underlying purpose of the Open Records Act as public officials could easily evade disclosure of public records by simply utilizing their personal cell phones.”
This is not a “clarification” of Kentucky’s existing open records law. It is not a “modernization” of Kentucky’s existing open records law. It will not eliminate confusion about Kentucky’s existing open records law. No one is confused about the importance of the laws’ broad sweep except, perhaps, some members of the General Assembly, and other officials, who thrive in darkness.
It is yet another assault — perhaps the greatest to date — on the public’s long recognized right to know. It is a mechanism for avoiding the first and most fundamental duty of a democratic government: transparency.
It is nothing less than the arbitrary assertion of might over right.
Lawmakers alone believe that “public business is none of the public’s business if it is conducted on a privately owned device or personal account.”
The 2024 Regular Session of the Kentucky General Assembly will come to a none-too-soon close, and the sunlight will grow dimmer in Kentucky while lawmakers peddle half-truths and advance false claims about compulsory surrender of public servants’ private cellphones, oblivious to their affront to the public and its cherished right to know.
It is likely that Sunshine Week will once again be a period of grave concern about what we may lose, rather than a celebration of what we have won through the decades long efforts of more enlighten lawmakers, judges, attorneys general, attorneys, advocates, and average Kentuckians who share ideological open government Founding Father President James Madison‘s belief that “knowledge will forever govern ignorance.”
Amye Bensenhaver is a retired Kentucky assistant attorney general who wrote open records and open meetings decisions for 25 years. She is co-founder and co-director of the Kentucky Open Government Coalition.
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