Gov. Beshear still defends KY open records bill despite advocates sounding alarm

As the state legislature prepared to gavel back into session Friday, Gov. Andy Beshear has continued to defend a bill the legislature could pass that open records advocates say would create a loophole allowing officials to hide the workings of public business.

House Bill 509 would require government entities to provide its employees, board members or other officials with government-issued or agency-furnished official email accounts to do government work. It mandates that officials “shall not” use any other email account for government work — but also it states explicitly that agencies aren’t required to search private devices or accounts.

This would allow officials to circumvent the Open Records Act entirely by communicating through other electronic means, like text messages or other apps, opponents of the bill say.

Those opponents include Jon Fleischaker, who is among the original authors of the state’s Open Records and Open Meetings acts; and Michael Abate, an open records advocate and attorney who has represented the Kentucky Democratic Party in a major legal battle. They said in a recent column that Beshear knows the bill would hurt access to public records.

“What do you think public officials and employees are going to do if they would prefer not to have their decisions second-guessed? You got it; they will simply communicate by means other than their work email,” the pair wrote.

Beshear said Thursday the backlash against the bill – he hasn’t said explicitly that he’ll sign it if passed, but has repeatedly defended – has surprised him.

“I’ve been a little bit surprised by the summary dismissal of a different point of view, name-calling that’s come from some – but, you know, I promised to do what I thought was best in this job,” Beshear said.

Though Beshear called it a “new law,” the bill still needs a Senate vote and could require House concurrence if any floor amendments are adopted.

The Democratic governor emphasized the fact that the law would require agencies to provide government emails to some officials who didn’t have one beforehand.

Fleischaker and Abate have called this a good step, but say it’s outweighed by the loophole it creates in barring searches of private and public devices.

Beshear has previously vetoed legislation that open records advocates derided. House Bill 312 in 2021 essentially shielded the entire Legislative Branch from the Open Records Act.

“We shouldn’t be trying to hide things,” Beshear said at the time. “Whether it’s the legislative branch, the executive branch or the judicial branch, a strong open records act, that ensures public access, makes sure government always works for the people.”

In a veto message, he wrote that “transparency and accountability are critical for a well-functioning democracy.”

Fleischaker and Abate also pointed out that the spirit of House Bill 509 goes against rulings that Beshear made when he was Kentucky’s attorney general from 2016 to 2019.

“Even though all records belong to the public under current law if they are discussing public business — as Attorney General Andy Beshear repeatedly ruled — they will become effectively off limits if the bill is passed and signed into law,” they wrote.

When asked how he communicates on public business and if he uses a private phone or other device to do so, Beshear indicated that he only did so “orally.”

“How do I communicate with my staff? I communicate with them face-to-face. I do it orally, over the phone… I’m still in the generation where we talk into a phone instead of just type,” Beshear said.

The Herald-Leader recently filed an open records request for messages on personal and private devices between the legislature and three of Beshear’s top staffers regarding House Bill 509. Beshear had mentioned previously that he and his office worked with the legislature on “parts of” the bill.

Beshear’s office responded to the Herald-Leader’s request stating that there were no responsive records between those staffers and legislators. The Herald-Leader and other groups — including the Kentucky Open Government Coalition and Paducah news station WPSD — have since filed other open records requests on the matter.

What next?

If the legislature passes House Bill 509, Beshear would hold all the cards on its ultimate fate.

Since the final two days of the legislative session – Friday and Monday – occur after the veto break, the legislature would have no time to override a Beshear veto if he chooses to do so.

Unless something changes, the plan is for the bill to pass this session, according to sponsor Rep. John Hodgson.

The Fisherville Republican, who was a cabinet official under former GOP Gov. Matt Bevin, told the Herald-Leader he expects some minor changes to the bill before final passage.

He says the bill could change to include compelled search of messaging platforms beyond email, like texts from a government-issued phone or messaging app account.

“Let’s say your agency gives you a Signal account for short messaging, then that Signal account would be subject to open records requests,” Hodgson said.

However, the core piece of the bill that opponents have criticized — that the public would not be able to request for any public business conducted on private devices or accounts —is likely to remain.

“Once you’re in compliance, your personal accounts would not be part of the search,” Hodgson said.