Anti-sunshine bill pulled from Senate orders after objections

03/23/2018 11:30 AM

FRANKFORT – Senate Republican leaders tabled a bill on Thursday which had an amendment that would bar government officials personal communications devices such as a personal cell phone or computers from an open records request.

The amendment to House Bill 302, sponsored by Senate Majority Floor Leader Damon Thayer, R-Georgetown, would change Kentucky’s open records laws which say that text messages, emails and phone calls on the private devices would not be considered public record.

HB 302, which originally dealt with reorganizing the Public Protection Cabinet, was originally on the consent calendar for Thursday, which would have allowed it to pass without any debate, but was pulled after media and other officials noted that the amendment would change open records request laws.

Senate President Robert Stivers, R-Manchester, noted that one of the reasons for the amendment was a reversal of an opinion issued by former Attorney General Jack Conway in 2015 that ruled officials could use private cell phones to carry out public business without being subject to Open Records Act.

“Understand what that means for legislators who are citizen legislators, who are lawyers or doctors, who have private conversations on their cell phones, to say that they are subject to an open records request, I know for myself, the Senator from Pike, the senator from Franklin, the Senator from Clark, all would do business on their cell phones,” Stivers said. “For us, we have confidentially provisions. For the Senator from Clark, his has a federal confidentiality provision.”

Thayer said that it’s the right of all 138 legislators to keep any communications on their personal communications devices private, and if that does not happen, the state will struggle to attract good men and women to run for office.

“I understand and respect the role of the media, 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 request because if that changes, the ability of this legislature to act as a citizen legislature will cease,” Thayer said.

Sen. Ray Jones, D-Pikeville, agreed with Stivers and Thayer about the right for legislators to have privacy when it comes to their personal communications devices, but wants the GOP majority to clean up some language in the amendment to avoid unintended consequences.

“We simply felt that the language was overly expansive because you wouldn’t, under that language, want a cabinet secretary sitting in her office doing official business through their personal email account and that not being subjected to open records,” Jones said.

HB 302 will be tweaked and could come back to the floor for a vote in the near future.

“We have withdrawn it from the consent orders and placed it into the orders of the day and will take time over this period that we are in recess to look at it, work with individuals and try to draft language which is appropriate to have transparency but to also protect speech and debate of legislators as well as privacy of legislators and other individuals in their respective private capacity,” Stivers said.


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