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Bill to exempt private electronic devices from open records requests on life support, but not dead yet

By Mark Hansel
Northern Kentucky Tribune

An amendment to House Bill 302 that would exempt private electronic devices from public records requests may have been slowed down, but it still has life.

Sen. Damon Thayer

The Kentucky Legislative Research Commission confirmed Monday that HB 302 was pulled from the Consent Calendar last week but remains in the Senate Orders of the Day Tuesday.

Click here to view the text of HB 302, the proposed amendment is on page 21, lines 11-15.

That means for the legislation to be considered, it would have to be discussed on the Senate Floor, but it could still be passed over and not voted on at all during this session.

Some observers say that appears likely based on the limited number of days left in the current Legislative session and the strong negative response from media outlets and others throughout the Commonwealth, when the amendment was added.

HB 302, which is described as An Act related to reorganization, was passed in the House and sent on to the Senate on February 26 for approval.

There the Senate State and Local Government Committee with the public records amendment introduced by Majority Leader Damon Thayer, R-Georgetown, asked that the following language concerning the access to private electronic devices be added to the legislation.

“Public record” shall not include any electronic communications, including without limitation, calls, text messages, or electronic mail contained in, sent, or received using a private cell phone or other private electronic device that is paid for with private funds or contained in, sent, or received using a nongovernment electronic mail account.”

A group of Democratic lawmakers requested Thursday that the Legislation be withdrawn from the Consent Calendar, slowing its progress and possibly ensuring it will not be voted on in its current form, if at all.

Senate President Robert Stivers, R-Manchester, Thursday indicated a willingness to work with members of the media and others to clear up the issues of concern, but defended Thayer and the intent of the proposed legislation.

“There have been several articles written saying that individuals particularly, (Sen. Thayer), was trying to hide something and I totally disagree,” Stivers said. “What is worrisome about this is an attempt to make sure we had the ability to have free discussions among ourselves and still be citizen legislators. It is our understanding that there was going to be a reversal of an opinion that was rendered by former Attorney General Jack Conway.”

Some who have questioned Thayer’s motives say he could have introduced a bill containing the language, instead of adding it to legislation that had already been approved in the House, with just a few days left in the session.

Sen. Robert Stivers

Stivers said Conway’s opinion indicated that private cell phones and electronic devices are not considered public records and therefore not subject to open records laws.

“I understand the need to have knowledge of people who are trying to do business,” Stivers said. “I spoke to an individual who is with the Kentucky Press Association that talked about how some committees were trying to do, at some level, business before they got to a meeting, or out of the public domain, which I understand.”

Stivers then suggested that identifying the private electronic devices of citizen legislators, such as lawyers or doctors, as public records, violated other confidentiality laws.

“If there was an attempt to do something, it was an attempt to protect this institution,” Stivers said. “I understand the need for transparency, but I also understand the fact that we, on our own personal cell phones, our own personal items of communication, shouldn’t be subjected to an open records request that could divulge personal conversations and even more egregious, something that is protected by confidentiality provisions of our professions.”

The suggestion that bodies that make decisions regarding the release of public records would violate HIPAA laws, attorney-client privilege, or any other legal standard of privacy, seems almost ludicrous to some.

The Office of Attorney General Andy Beshear released the following statement regarding the inclusion of the amendment in HB 302.

“The manner in which this committee substitute to House Bill 302 is being handled shows state government needs more transparency, not less. In its current form, the bill would change Kentucky’s Open Records law regarding the use of private emails or devices. Our office applies the law governing open records on a case-by-case basis and recently held that there have been violations of the Open Records law regarding the use of personal communications to conduct public business.” (17-ORD-273 and 18-ORD-032).

Put simply the statement from the AG’s office says what everyone who has ever sent an open records request knows – it is not a guarantee. Issuing agencies or even an individual, can refuse to comply with an open record request and identify the reason for that refusal. The petitioning party can then appeal and ultimately enter into litigation to obtain the information, but must demonstrate that the requested information meets the guidelines for release.

“The manner in which this committee substitute to House Bill 302 is being handled shows state government needs more transparency, not less. In its current form, the bill would change Kentucky’s Open Records law regarding the use of private emails or devices. Our office applies the law governing open records on a case-by-case basis and recently held that there have been violations of the Open Records law regarding the use of personal communications to conduct public business,” statement from the OAG regarding the proposed amendment to HB 302

Specifically, 18-ORD-032, identified in the AG’s response above, appears to deal directly with personal electronic devices or accounts. In this instance, the open records request was for email correspondences of a city council member who did not use a government account, but corresponded with other city officials about official business from a private account.

The AG made the following determination:

“If records are “used … by a public agency,” “they are subject to the Open Records Act, regardless of where they are located or whose ‘personal property’ they are considered.”  17-ORD-050.  “In the end, it is the nature and purpose of the document, not the place where it is kept, that determines its status as a public record.”

Ultimately, Stivers said the Senate was going to “step back” and work with agencies that had concerns about the amendment to make sure there is transparency.

Thayer also took to the Senate floor Thursday to chastise the media and defend his intent in adding the provision to HB 302.

Thayer did not return calls from the Tribune to his cell phone Monday, for comment on this story.

“Today, I’ve been vilified in my intentions and motivations called into question,” Thayer said. “Which is quite ironic because I have spent my 15 years here in this body devoted to government transparency, accessibility to my constituents. The press that ambushed me earlier today on the Senate floor know that I am one of the most accessible members of this body.”

As a public relations professional in his private life, Thayer said he understands and respects the role of the media.

“It’s part of my job to communicate with them about what our caucus, what this body is doing, so they can do their jobs, communicating back to the people of the Commonwealth of Kentucky,” he said.

At one point, Thayer became animated, raising his voice and holding his cell phone above his head.

“But I will protect if it’s the last thing I do here, the right for private citizens to be able to communicate on this phone, without being subject to open records requests” Thayer said. “Because if that changes, Mr. President, the ability of this legislature to act as a citizen legislature will cease. You will not attract good men and women of either political party to run for this office if they can’t have private communications, their private lives and their private businesses on these cell phones that have changed the way our world communicates.”

Thayer said many public officials do not even have their official email account on their cell phones, which, if true, seems peculiar. Public officials pride themselves on being accessible to constituents and in today’s world, the best way to do that is with a portable electronic device.

The reality is that the law governing electronic correspondences would only “change” if the bill, with the provision included, is approved. As it stands now correspondences from cell phones, emails and other electronic devices, that focus on the performance of public office, are not exempt.

The only way to determine whether the devices are being used for public correspondence is by examination through open record requests. Supporters of maintaining the status quo contend that it does not seem unreasonable to expect that the agencies charged with making that determination would use proper discretion.

What would make that almost impossible to determine is legislation that exempts any electronic communications, “including without limitation,” calls, text messages, or electronic mail, contained on those devices.

Laws governing public officials are not put in place to protect or police individuals. They are enacted to protect the integrity of the office and it would seem that as long as the person in office is someone of integrity, this should not be an issue.

Those who oppose the amendment have expressed concerns that if it is included, public officials could completely eschew public lines of communication, secure in the knowledge that they will never have to reveal correspondences. This opens up the possibility that they would also be able to abuse the privilege afforded them, by discussing issues or disclosing information outside of the public eye, without fear of reprisal.

Some might argue that is a much greater risk.

Mark Hansel is managing editor of the Northern Kentucky Tribune. He can be reached at mark.hansel@nkytrib.com.

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