As threats to open government in Kentucky keep multiplying, it’s hard to celebrate

Published 1:00 pm Thursday, March 16, 2023

By Amye Benshaver

Guest Commentator

I will not celebrate Sunshine Week 2023.

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Since leaving the Kentucky Attorney General’s Office in 2016, I have pursued open government as an avocation rather than a vocation. I have come to understand the importance of Sunshine Week as an annual celebration of public records laws securing the public’s right to know how their elected officials conduct the public’s business.

But as a former assistant attorney general, I experienced government from the inside and I despair for open government in Kentucky.

As darkness descends in our state and local governments, Sunshine Week increasingly feels like a Hallmark holiday — a Valentines Day for those who lament the fact that they have none, a Bosses Day for those who lament the fact that they do.

I cannot celebrate past open government victories — or feign optimism for open government’s future — in Kentucky. Our once enthusiastically endorsed and jealously guarded open records and open meetings laws are, in these times, regularly disregarded, discredited, disdained and even demonized — in actions if not in words.

No. I won’t celebrate Sunshine Week 2023.

What I will do, instead, is pledge — as a member of the Kentucky Open Government Coalition — to continue the fight to preserve the Kentucky open records and open meetings laws. I will continue to be that nagging voice that alerts the public to threats to our open government laws — threats emanating from out-of-state organizations that share ill-conceived and agenda driven “model” public records legislation, public officials, associations of public officials, legislators, attorneys general, and judges (some whose hands are tied by the combined efforts of all of the above and some hand picked and endorsed to advance their combined interests in undermining the public’s right to know).

As an esteemed colleague, Frank LoMonte, recently observed:

“It’s important for everyone invested in a well-functioning government — not just the few salaried journalists we have left — to take ownership of the right to be informed. I want everyone to see freedom of access to information as their own personal cause, not a cause that belongs to news reporters, because news reporters can’t win the battle against government secrecy alone.”

The latest offense to open government: Senate Bill 62

I’ll spend Sunshine Week 2023 monitoring last minute legislative maneuvers and hoping that no greater offense to open government than the largely unvetted and deceptively named “Personal Privacy Protection Act,” Senate Bill 62, emergeres this session.

In spite of vigorous objections raised by the Kentucky Press Association and the Kentucky Open Government Coalition, the bill is posted for passage on Monday, March 13.

The sponsor, Sen. Whitney Westerfield, insists that SB 62 does nothing more than codify a 2021 United States Supreme Court case, Americans for Prosperity Foundation v Bonta, holding that a California requirement for non-profit organizations to disclose their donors to the state Attorney General was invalid because it burdened the First Amendment rights of the donoh

Westerfield acknowledges that there is no actual threat in Kentucky similar to the threat addressed in the federal case. His solution looking for a problem has become the norm in Kentucky’s legislature.

But HB 62 is likely to create multiple problems in interpretation of existing open records law as delineated in the statements of opposition issued by the KPA and the Coalition.

The KPA objects that the bill  will restrict “the right of the public and press to access what is deemed to be personal information of donors in court proceedings, with courts prohibited from allowing such information into the public record without first finding ‘good cause.’”

KPA attorneys express concern that courts “must default to sealing and redacting ‘personal information’ from the court record and closing otherwise public trials to the press and public if ‘personal information’ is presented.”

The KPA also expresses concern that “draconian penalties” for disclosure will “flood Kentucky’s courts with frivolous lawsuits designed to cash-in on an unwitting civil servant’s incidental disclosure of benign information and chill the production of nonexempt information in response to valid open records requests.”

The Coalition’s objections are premised on the potential that officials will improperly invoke the new categorical exemption for “personal information,” as narrowly defined in HB 62, to deny access to “personal information” that has generally been deemed accessible under the open records law privacy exception — KRS 61.878(1)(a) — where the public’s interest in disclosure outweighs the privacy interests that may be implicated by disclosure.

For example, in 2008 the Kentucky Supreme Court determined that identities of donors to the non-profit University of Louisville Foundation were not protected by the privacy exception since the public “has a legitimate interest in the amounts and sources of monies donated to the [University of Louisville] Foundation which ultimately funds the University.”

Under SB 62, donors could avoid disclosure of their identities by requesting anonymity from the nonprofit organization.

The great body of Kentucky law construing the personal privacy exception — which turns on an examination of competing public and private interests — is threatened by a categorical exception like the exception for “personal information” found in SB 62.

Keep on fighting for open government laws

I’ll also spend Sunshine Week 2023 assisting those who reach out to better understand their rights under Kentucky’s open records and meetings laws.

I’ll spend Sunshine Week 2023 speaking (by Zoom) about the threats to open government in Kentucky to a group of concerned citizens. And I will write — without influence or fear of retribution.

And while there is breath in my body, and/or the synapses are still firing, I won’t give up the fight.

I (we) owe no less to all of those who came before us and who fought the good fight for Kentucky’s open records and open meetings laws.

Amye Bensenhaver is a retired Kentucky assistant attorney general who authored open records and open meetings decisions for 25 years. She is co-founder and co-director of the Kentucky Open Government Coalition.