KY Senate approves bill to weaken open records law for police, other public agencies
The Kentucky Senate on Friday easily passed a bill to make it easier for police departments to withhold law enforcement records from the public under the Kentucky Open Records Act.
The bill returned to the House, which must concur with the Senate's actions and give it final passage.
House Bill 520 makes crucial changes to the state's open records law by lowering the government's burden of proof when it wants to withhold crime incident reports, 911 tapes, investigative files and other related documents.
Instead of having to provide specific evidence of how releasing a record to the public would imperil an ongoing investigation, as is currently required, police only would have to say that disclosure could 'pose an articulable risk of harm' to them or their pending casework.
'This change makes the burden more reasonable for law enforcement agencies to comply with and protects public safety by ensuring that protected information related to investigations is not prematurely released while law enforcement actions and investigations are ongoing,' said state Sen. Danny Carroll, a former assistant police chief in Paducah, arguing for the bill on the Senate floor.
Apart from local and state police, the bill also covers records held by public agencies that conduct administrative investigations into alleged wrongdoing, such as the state's inspectors general and regulatory and licensing boards.
Before the Senate floor vote, Carroll, R-Paducah, withdrew a Senate committee substitute, adopted on Thursday, that contained even broader language. The substitute would have allowed police to withhold records if they were willing to say that disclosure 'could pose a risk of harm.' That version barely survived the Senate committee vote.
The Senate voted 25-to-12 in favor of the bill, with most of the chamber's Democratic minority joined by several libertarian-leaning Republicans who appeared wary of promoting government secrecy.
'It looks like a really simple change — it's changing a 'would' to a 'could,'' said state Sen. Lindsey Tichenor, R-Smithfield, explaining her opposition to the bill.
'But 'could' is very subjective,' Tichenor said. 'And making such a significant yet minor change really changes our Open Records Act, which potentially closes off transparency. This 'would' has been in place for 49 years and has served its purpose well.'
Kentuckians have a legitimate right to know what's happening with criminal cases, especially if they're the ones who were personally affected, Tichenor said.
Advocates of open government protested Friday that the bill is an attack on years of court rulings in open records appeals in which police have been told either to release records to the public or be more specific in explaining why requested records should be withheld.
Most recently, the Kentucky Supreme Court ruled last year for the Courier Journal in its fight for 911 tapes and other records related to a deadly high-speed car crash involving police in the city of Shively in Jefferson County.
Unable to prevail at the courthouse, police have asked the General Assembly to rewrite the open records law in their favor, said Amye Bensenhaver, a former assistant attorney general and co-founder of the Kentucky Open Government Coalition.
'It was, and still is, so clearly a legislative reversal of the Shively opinion and a decade plus of thoughtful judicial analysis. It has the attorney general's fingerprints all over it, and is obviously driven by law enforcement,' Bensenhaver told the Herald-Leader.
'In my view, the proposed Senate bar for justifying denial is the lowest ever: an agency statement 'that the disclosure of the information could pose a risk of harm to the agency or its investigation,'' Bensenhaver said. 'We are so screwed if this passes.'
The bill is publicly endorsed by the Kentucky League of Cities, the Kentucky Police Chiefs Association and the Kentucky Sheriffs Association.
A note prepared for and attached to the bill by legislative staffers suggests that by making it easier to deny requests, the bill likely would 'reduce the administrative burden on local law enforcement agencies by limiting the volume of records they must review and redact before responding to open records requests.'
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