Kentucky’s past legislative session showed alarming trend toward government secrecy

·4 min read

For most of us who saw the horrifying video of George Floyd’s murder, former Officer Derek Chauvin’s recent guilty verdict was not a surprise.

One chilling question was left unanswered, though: Would Officer Chauvin have been charged, much less convicted, if the public never saw that video or knew of his name? Sadly, I don’t think he would.

This is not an idle matter. Indeed, its likelihood is greater than ever here in the commonwealth thanks to a growing number of efforts designed to limit the public’s right to know what its own government is doing.

Consider the potential impact that two new changes to Kentucky law could have had on the George Floyd case. Under one, the bystander video that was crucial in Officer Chauvin’s conviction could have been kept from public view had it been confiscated by police, since there is a new Open Records Law exemption for videos depicting a death.

November’s passage of Marsy’s Law, meanwhile, could have been twisted by Officer Chauvin himself to keep his name from ever being released. There is some legal debate whether this could happen here, but police officers in at least three other states where this constitutional amendment is in place have sought to qualify under its victims’ rights protections.

It is important to point out that these two laws were approved with the best of intentions. I voted for both because I want victims to have greater protections in court and because videos depicting rape and murder should not be readily available to voyeurs and those who profit from these unspeakable events.

At the same time, though, I believe it is vital that my fellow legislators and I draw a brighter line to make sure these new shields are not turned into weapons by anyone seeking to avoid accountability.

I would feel better about that attempt if we had not seen other examples seeking to pull the shade down further on our sunshine laws.

The most egregious example is found in new exemptions carved into an Open Records law once hailed as a national model. All public agencies now have five instead of three days to respond to open-record requests, and there are new limits blocking requests filed by citizens from other states.

The General Assembly also made itself, rather than the courts, the final authority over which of its own records will be released to the public. This new oversight will effectively apply to any record not already on the legislative website, and appeals are limited to the 16 House and Senate leaders. If we don’t take action at our next meeting – these gatherings are held sporadically through the year – then the appeal is denied without a vote. As my friend and colleague Representative Mary Lou Marzian said during debate on this legislation, “what are we trying to hide?”

Another bill on track to becoming law before Governor Andy Beshear vetoed it would have let virtually anyone with ties to the criminal justice system remove personally identifiable information from public records. That exemption would have applied to immediate family as well as those who once held those jobs. There was no need for this, since sensible restrictions on personal information have long been in place.

Governor Beshear noted the bill’s potential absurdity in his veto, saying it could have given him – the chief executive of our state – the right to redact his current office number since he was previously Attorney General.

The General Assembly’s own actions during this year’s legislative session did little to promote transparency. Instead of slowing proceedings down because the public could not be in the Capitol due to COVID restrictions, House and Senate leaders hit the accelerator instead, approving about 200 new laws over 30 working days.

Some revised bills could not even be read by legislators until just before a vote. Significant changes were made behind closed doors, and in many cases, anyone watching proceedings online would have little idea what was happening. They certainly had no way to follow along in those instances, much less be able to let their legislator know their support or opposition.

One of the more egregious actions the state House took this year was sharply limiting the time spent debating the override of Governor Beshear’s vetoes. We just had a few minutes for each rejected bill, and that included treating multiple budget vetoes as one. In the more than 25 years I have served as a legislator, I have never seen such a heavy-handed approach shutting down dissent.

The paradox of our times is that we live in an era where government secrecy is on the rise even as we have access to more information than ever before. These growing cracks in our democracy may not always draw headlines and protests themselves, but as the case involving George Floyd and our own Breonna Taylor show all too clearly, we stand to lose so much if we let these protections crumble.

For the sake of good and transparent government, we cannot let that happen. Let us pledge to let the sunshine in, because it truly is, in the words of former U.S. Supreme Court Justice (and native Kentuckian) Louis Brandeis, the best disinfectant.

State Rep. Joni Jenkins is the Kentucky House Democratic Caucus Floor Leader. She represents the 44th District in Jefferson County.

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