Committee advances amended open-records bill after lengthy debate over "could" vs. "would" standard

Representative Chris Fugate, sponsor of House Bill 520, told the committee the bill—and the committee substitute—addresses when records related to open police investigations may be withheld from public records requests to protect ongoing investigations, witnesses and confidential informants. "This open records request… would keep the open record from being or parts of our investigation from being received from different people or agencies while the investigation is ongoing. It protects the investigation," Fugate said.

Several senators pressed the sponsor and other witnesses about the committee substitute's change of language from "would" to "could." Senator Tishner asked whether the bill amounts to a change to the Open Records Act; Representative Fugate said it deals with records of ongoing investigations. Senator Chambers Armstrong raised a procedural concern: "Am I reading this correctly that under this if an agency just says, I believe this would pose a risk of harm that alone is sufficient to be able to withhold and there's no role for a court to question that determination?" Chambers Armstrong said he had previously litigated open-records issues and recalled courts historically reviewing agency claims.

JD Cheney, representing the Kentucky League of Cities, said the substitute retains language that prevents custodians from using exemptions as a means to delay or impede public-rights under the Open Records Act. "This maintains the language in that last sub-paragraph that the exemptions… shall not be used by the custodian of records to delay or impede the exercise of rights granted under the Open Records Act," Cheney said.

Sandra McDaniels (identified in the hearing) and other committee members noted that records generally become open after enforcement action is completed or a decision to take no action. Questions focused on how long records could be withheld, the standard an agency must meet to withhold records, and whether the change to "could" would increase the number of in-camera or appellate reviews.

During roll call members explained votes on both policy and transparency grounds. Senator Elkins and several members said they supported the bill to protect active investigations; others, including Senator Rawlings and Senator Tishner, said the change to "could" was too broad and voted no. Senator Hawkins later changed his vote to yes to move the bill along. After changes and explanations the committee passed House Bill 520 as amended by the committee substitute, 6-4, and reported it favorably to the floor.

The committee record shows the bill seeks to withhold certain investigative records until enforcement action is complete or a decision is made to take no action; exact timelines and some statutory cross-references were discussed but not resolved in committee. The hearing featured extended debate about the appropriate legal standard and the role of courts or the attorney general in adjudicating disputes over withheld records.