Local lawmakers, candidates largely mum on measure

March 23--Few Owensboro-area legislators were familiar Thursday with new language in a bill that, if approved, would exempt electronic communications from the state's Open Records law, unless those communications were on a government-issued cell phone or email account.

But legislators and political candidates who could comment on the bill expressed reservations about the bill's impact on access to government information.

The language was inserted Wednesday into House Bill 302, a bill that passed the House in late February without any reference to the Open Records law. The language was inserted into the bill by a Senate committee.

While state law says documents of a public agency "in any form" are open record, with exceptions, the Senate language would exempt "calls, text messages or electronic mail" sent or received "while using a private cell phone or other private electronic device that is paid for with private funds." The language would also exempt email sent or received "using a nongovernment electronic mail account."

The Associated Press reported in 2015, then Attorney General Jack Conway issued the opinion that the Open Records law does not require the state to hand over records from private cell phones and computers, because those records are not in state possession.

In an interview in the Courier-Journal, Jon Fleischaker, who wrote the state's Open Records law, called the language "a blueprint for any public official who does not want his actions to be traced on public records by using a personal cellphone or a personal computer."

Few Owensboro-area legislators reached Thursday said they were aware of the bill.

"I need to look at that bill a little before I can comment," said Rep. Jim Gooch, a Providence Republican. But Gooch expressed some reservations, saying, "certainly, we have to be very careful if we are eliminating open records."

Rep. Robby Mills, a Henderson Republican, said Monday afternoon he was "vaguely" aware of the provision.

"It's nothing that was being talked about as a priority in our caucus" in the House, Mills said. "I don't have any insight for you on that."

Because the original version of the bill passed the House, the altered version would have be sent back to the House for members' approval, if it passes the Senate. The bill was set to be approved Thursday in the Senate, but the session ended without the bill being called.

"I guess we would have to concur or not concur with it," Mills said. The caucus could concur with the amended bill "if it's a priority," Mills said.

Thursday afternoon on the Senate floor, Sen. President Robert Stivers, a Manchester Republican, said the language of the bill would be worked on with organizations such as the Kentucky Press Association.

The bill is "an attempt to protect this institution" and protect members' private cellphones, Stivers said. Sen. Damon Thayer, a Georgetown Republican and Majority Floor Leader, said the goal of the bill was to "protect" House and Senate members' "right to have private communications."

Rep. D.J. Johnson, an Owensboro Republican, and Rep. Matt Castlen, a Maceo Republican, said they hadn't read the bill and were unable to comment on Thursday. Rep. Suzanne Miles, an Owensboro Republican and Sen. Joe Bowen, an Owensboro Republican, did not return messages seeking comment.

Rep. Melinda Gibbons Prunty, a Greenville Republican, said she supported legislators being able to have private communications.

"I feel like my personal (phone) is my personal," Prunty said, noting she'd purchased a second phone just for personal communications. Anything done on government communications "is definitely open," Prunty said.

"The government doesn't provide a cellphone" to legislators for government business, Prunty said.

"I guess Sen. Thayer is trying to provide some protection" to legislators' communications, Prunty said. "I can't say if I'm going to vote for it yet. I need a little more clarification."

Not every candidate running for state office in the Owensboro area was familiar with the details of the bill. Jordan Lanham, a Republican running for the 14th House district being vacated by Castlen, and Bruce Kunze, a Democrat running for the 12th District House seat currently held by Gooch, both said they hadn't read the bill and couldn't comment on the issue until they were more familiar with it.

Dianne Burns Mackey, a Republican running for the 8th District Senate seat, could not be reached Thursday for comment.

Scott Lewis, a Republican running for the 14th House District seat, said he has handled Open Records requests as superintendent of Ohio County Public Schools and hasn't had an concern.

"I'm not sure where he (Thayer) is coming from, because it doesn't cause (us) any issue," Lewis said. "Maybe he has had some issues with his personal phone."

Lewis said, "I always thought government needs to be more transparent. If you don't have anything to hide, you don't have problems." Attaching the language to another bill was a concern, Lewis said.

"I don't like that part," Lewis said. "If it's important, it needs to stand alone."

Elizabeth Belcher, a Democrat running the in 14th District House race, researched the bill and later said, "from what I can tell, Kentucky would be the first state in the country to have such a law."

"It certainly allows legislators to conduct business and not have any record" by using private devices, Belcher said. "I think (the bill) will be subject to legal challenge.

"I would be totally against that," Belcher said. "We need open, transparent government."

Jim Glenn, an Owensboro Democrat running for the 13th House seat against Johnson, said "the public won't have any access at all" to government business done on private phones and email accounts.

"You would have to sue to get it," Glenn said. "... They are saying, if they use their own device, they don't want the public to know what they're doing."

Glenn said he would need to examine the bill but said he didn't support it. "Public officials are public officials," Glenn said.

Bob Glenn, a Democrat running for the 8th District seat being vacated by Bowen, said the language of the bill is "an easy way to encourage corrupt practices."

"I definitely think they are trying to pull a fast one," Glenn said. "It's something they inserted, hoping no one would notice, and the public should notice.

"I think this has the potential for some serious abuse," Glenn, who is a current Owensboro City Commissioner, said. "... I think it's a back door to subvert the (job) of journalists."

Joy Gray, a Democrat who is running in the 7th District race against Miles, said the bill's language creates a pathway for legislators "where they can go behind closed doors and do things, and you can't get information. I don't agree with that."

"That goes against Open Records laws and Open Meetings laws, because they can do it while sitting on the floor (of the House or Senate), or in committee meetings," Gray said.

"If it's your personal device, don't conduct business with it," Gray said. The bill's language "lends itself to mistreatment," Gray said.

James Mayse, 270-691-7303, jmayse@messenger-inquirer.com, Twitter: @JamesMayse

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