The opening shot in what may be a long legislative assault on open government has been fired.
Rep. John Blanton (R-Salyersville) has pre-filed 21 RS BR 985, “relating to private information of public officials.”
If enacted, the bill will:
- exempt personally identifiable information of judges, prosecutors, and law enforcement officers — including their first and last names — from the open records law;
- declare unintentional dissemination of personally identifiable information a Class A misdemeanor; if intentional, a Class D felony;
- establish a civil right of action for actual and punitive damages, costs, and attorneys’ fees against “a perpetrator” who disseminates the information if the law enforcement official or her family is harmed by the violation; and
- create “a new felony of disseminating personally identifiable information on the internet about a law enforcement officer.”
The bill contains a provision declaring an emergency “because of the ease of publishing personal information over the internet and social media, and the increase in death threats and deaths [sic] to judges and other public officials.”
Unless it is defeated, it will “take effect upon passage and approval by the Governor or upon its otherwise becoming law.”
It is important to note that personally identifiable information relating to all public officials and employees, but unrelated to their public duties, is already protected by the privacy exception to the open records law.
Because public officials and employees have a strongly substantiated privacy interest in their dates of birth, home addresses, social security numbers, and so on, personally identifiable information can already be properly withheld. And, the public’s interest in how the officials or employees discharge their duties, or how the agencies they serve conduct the public’s business, is not served by disclosure.
This suggests that Blanton’s bill is yet another legislative solution looking for a problem.
But the privacy exception to the open records law does *not* protect the *names* of judges, prosecutors, or police officers — or any other public official or employee for that matter.
Blanton’s bill clearly defines protected personally identifiable information to include the individual’s *first and last name.*
It declares that “[a]ll personally identifiable information of a judicial officer, prosecutor, or law enforcement officer shall be exempt from the Open Records Act and shall not be released to the public.”
If Blanton’s bill were currently in effect, the names of the police officers at the center of the Explorer Scout scandal, Kenneth Betts and Brandon Wood, would be categorically exempt. So, too, would the names of Myles Cosgrove, Brett Hankison, and Jonathan Mattingly. These law enforcement officers served the search warrant on the home of Breonna Taylor.
However compelling the public’s interest in disclosure of the individual judge’s, prosecutor’s, or law enforcement officer’s identity might be — whether commendation for extraordinary conduct or condemnation for egregious misconduct — public agencies will be foreclosed from releasing their names.
Blanton’s bill bears some of the earmarks of an unsuccessful bill sponsored by Sen. Danny Carroll (R-Paducah) in 2019. But that bill — which was widely criticized by open records advocates — did not go so far as to extend blanket protection to the *names* of public officials and employees, including judges, prosecutors, and police officers.
Perhaps the most offensive aspect of Blanton’s bill is the premise that any public official or employee should be permitted to anonymously conduct the public’s business and secretly discharge their taxpayer-funded duties because those duties and that business expose them to a lesser or greater risk of harm.
Without reference to the competing public interest in disclosure or the fact that “a person’s name is personal but it is the least private thing about” him or her, Blanton’s bill extends blanket protection to the names of judges, prosecutors, and law enforcement officers.
Given the extensive mechanism for civil and criminal liability for dissemination, will the bill, if enacted, have a dramatic chilling effect on public access? Does existing protection for the personally identifiable information of public officials and employees — other than their first and last name — render the bill redundant? Has the sponsor considered the vast logistical challenges of implementation?
Whatever the answers to these questions, one thing is clear: the categorical exclusion of the names of judges, prosecutors, and law enforcement officers from the open records law is directly at odds with “[t]he public’s ‘right to know’ that its public servants are indeed serving the public” and the foundational principles on which the law is premised.
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