Saturday, February 24, 2024

Do not let government hide behind texts

COMMENTARY By Press Editor Chris Evans

Your government is wanting to dismantle the public’s right to know, partly by saying communications in a text message are protected by privacy laws even when those communications   circumvent laws to provide transparency in governing.

A recent opinion piece written by Jon Fleischaker and Michael Abate is making its way across the commonwealth and it bears printing here. Fleishaker has been around for a long time and helped craft Kentucky’s very good open meetings and open records laws back in the 1970s right after Watergate when it became clear that backroom politics was for mobsters and had no place in the government of and for the people.

“It’s become an annual tradition in Frankfort: a new bill designed to chip away at the government transparency Kentucky citizens have enjoyed for nearly 50 years under the Open Records Act. This year’s bill – HB 509, endorsed by Speaker David Osborne and others in House leadership – is different, though. It would completely eviscerate the public’s right to know even the most basic things about what the government is doing in its name,” Fleischaker and Abate have written.

They go onto to say the following:

“How would it accomplish this goal? Primarily by changing the definition of what a “public record” is. Today, that definition is clear: any record prepared, owned, used, possessed, or retained by a public agency, regardless of its form (paper or electronic), what it says, or where it is stored. Sure, agencies can claim that records are exempt from disclosure under other provisions of the law, but the agency must search for the records, admit they exist, and explain why they should not be released. 

“Not under the new law, however. Legislators are proposing to smuggle various limitations and exclusions into the definition of “public record” – opening the door to mischief and misdirection by public agencies. Under HB 509, nothing would be a “public record” unless it documents a “transaction” or “final action” of a public agency. Those terms are not defined by the law, but it’s easy to see how they will be abused.”

The public has a right to know about its employees and what is in their personnel files. Whether it be teachers, police, coaches, dog catchers, mayors, judges or jailers, public employees work for the public and their personnel files are yours. Under proposed legislation, most of their work record will be hidden forever.

Fleischaker and Abate point out that even if you somehow surmounted this new hurdle, there are more roadblocks in your way. “For example, “preliminary” documents will no longer be public records. Under current law, these records can be withheld, but only temporarily. Once a final decision is reached, the reasons for it must be disclosed. Not under HB 509—the records showing why your government is doing what it is doing are permanently off limits.”

Lastly, is the cell phone provision in this proposed new law, and it’s the real head scratcher. 

Remember, Fleischaker and Abate are not politicians. They’re attorneys who are hired to keep an eye on legal manuevering to water down or circumvent the laws that provide transpancy in government. What

they are observing with this proposed legislation should be of great concern to us all.

The bill would exempt anything done on a “personal” device or email account from public scrutiny even if it concerns public business, they write in the opinion piece submitted to news organizations all across the state.

“When Sen. Damon Thayer tried to pass this exemption several years ago, public outcry forced the General Assembly to abandon that plan in favor of a narrower exemption for ‘communications of a purely personal nature unrelated to any governmental function.’ Now they’re back at it, trying to exempt anything on a cell phone or gmail account, regardless of what it says.”

Kentucky’s Court of Appeals recently reminded us of the danger of this approach: “To categorically exclude all text messages on personal cell phones from the scope of the Open Records Act would surely operate to encourage the use of personal electronic devices and place vital public records beyond the reach of citizens.”

That’s exactly right, says Fleishaker and Abate, and we all should agree. 

No matter how or where it starts, the making of public policy is your business – the public’s business. We are a government for the people and of the people. This isn’t Goodfellows. We don’t need a House of Cards.

We should follow the advice of Fleischaker and Abate. Citizens of all parties should unite in strong opposition to HB 509’s radical dismantling of the Open Records Act. 

“If this bill becomes law, you’ll no longer have the right to see what public officials and employees are doing on the public’s dime,” caution’s the two legal minds who are watching this type of stuff for you. 

Jon Fleischaker and Michael Abate are media law and First Amendment experts who serve as General Counsel to the Kentucky Press Association. They practice at the law firm of Kaplan Johnson Abate & Bird LLP, where they regularly litigate Open Records and First Amendment disputes across the Commonwealth. Fleischaker was among the original authors of the state’s Open Records and Open Meetings Acts.