# Kentucky’s open door on government transparency is closing **Published:** 2026-06-08T09:30:42.000Z **Source:** [Kentucky Lantern](https://kentuckylantern.com/2026/06/08/kentuckys-open-door-on-government-transparency-is-closing/) **Republished from:** [Kentucky Lantern](https://kentuckylantern.com/2026/06/08/kentuckys-open-door-on-government-transparency-is-closing/) (CC BY-NC-ND 4.0) **Canonical:** https://kentuckylantern.com/2026/06/08/kentuckys-open-door-on-government-transparency-is-closing/ By Amye Bensenhaver, [Kentucky Lantern](https://kentuckylantern.com) · June 8, 2026  (A group of advocates from politically different organizations is warning that Kentucky's open records laws are being weakened beyond repair. (Getty Images)) _Editor’s Note: In addition to Amye Bensenhaver, this commentary was co-authored by Caleb O. Brown, Kate Miller, and Heather LeMire._ Kentucky built its Open Records Act on a simple, powerful premise: that free and open examination of public records is in the public interest. For nearly 50 years, that premise provided a basic guarantee that Kentuckians could see what their government was doing in their name. That premise is now under a growing threat — from the legislature, and increasingly from the courts. Two recent developments, taken together, reveal how quickly a transparency framework can erode. Last year[House Bill 520 took effect](https://kyopengov.org/blog/hb-520-takes-effect-june-27-get-your-requests-investigative-records-now), fundamentally restricting Kentuckians’ right to access records in a criminal investigation. In April the[Kentucky Supreme Court issued a ruling](http://opinions.kycourts.net/sc/2023-SC-0524-DG.pdf) narrowing the definition of what constitutes a “public record” in ways that open a significant loophole for officials who wish to conduct government business out of public view. #### The legislative retreat: HB 520 The story of[HB 520](https://kyopengov.org/blog/hb-520-takes-effect-june-27-get-your-requests-investigative-records-now) begins with a court victory for transparency. In Shively Police Department v. Courier-Journal, the Kentucky Supreme Court reaffirmed that law enforcement agencies could not simply invoke the secrecy of an open investigation to withhold every record in a file. The court rejected the long-held view that a separate statute authorized blanket nondisclosure of entire files while ignoring the required showing of actual harm, simply because the files relate to an open investigation and possible prosecution. The court’s logic was sound: a blanket presumption of harm from disclosure of any record in an ongoing investigation would turn on its head the Open Records Act’s basic presumption of openness and relieve law enforcement agencies of their statutory obligation to separate excepted materials from unexcepted materials. The legislature’s response was swift and telling. Six months after the Kentucky Supreme Court clarified the law enforcement exception, legislators moved to restore the upper hand to law enforcement — relieving them of the statutory duty to separate excepted materials from unexcepted materials. The critical mechanism was a subtle but devastating change in language.[HB 520 substitutes “could” for “would”](https://kyopengov.org/blog/kentucky-open-government-coalition-statement-hb-520) — a hypothetical or speculative risk of harm, rather than an actual risk of concrete harm based on the individual record’s content, is now sufficient to deny the public access to records in an open investigation. This word swap is not a technicality. It is a philosophical reversal. Under the old standard, an agency had to demonstrate that a specific record’s release would cause concrete harm. Under HB 520, any agency can point to the fact that an investigation is open and speculate that disclosure could “taint the jury pool” or “influence witness testimony.” Those phrases can apply to virtually any investigation, at any stage. Some investigations are deemed open for decades — in one extreme case, for 25 years, and another, in excess of 40 years. A standard based on “could” rather than “would” is no standard at all. [Open government advocates](https://kyopengov.org/) pointed this out plainly during the legislative process. No open government advocate opposed HB 520 on the grounds that it allows agencies to articulate reasons for denial or that it enables a requester to appeal to the Attorney General — these protections have existed for decades. The objection was precisely to the dilution of the harm requirement. Sen.[Greg Elkins](https://legislature.ky.gov/Legislators/Pages/Legislator-Profile.aspx?DistrictNumber=128), a Republican from Winchester, voiced discomfort during committee, saying the word “could” seemed too broad. Sen.[Cassie Chambers Armstrong](https://legislature.ky.gov/Legislators/Pages/Legislator-Profile.aspx?DistrictNumber=119) echoed concerns that HB 520 could shift the power to decide whether an open records exemption applies from courts to law enforcement agencies themselves. Those concerns did not prevail. It is rarely curiosity — and almost never a desire to compromise an investigation — that drives the public to submit open records requests for law enforcement records. It is far more often the public interest in ensuring that law enforcement agencies are properly executing their statutory functions, in gauging the threat to community safety, and in the most compelling cases, in enabling a grieving family to search for and find answers in the face of official silence over long years. HB 520 makes that search harder. #### Private devices and public business If HB 520 represents the legislature’s assault on transparency, the[Kentucky Supreme Court’s April 2026 ruling](http://opinions.kycourts.net/sc/2023-SC-0524-DG.pdf) in Kentucky Department of Fish and Wildlife Resources Commission v. Kentucky Open Government Coalition represents a different kind of threat — one born not of bad faith, but of legal formalism that produces troubling practical results. The facts were revealing. Commission members were not provided with governmental email accounts; instead, the Commission’s own website listed members’ private email addresses as their contact information. When the[Kentucky Open Government Coalition](https://kyopengov.org/) requested communications between commission members and legislators, the Commission declined to produce records on private devices, citing an Attorney General opinion that documents solely in the possession of individuals on their personal devices are not public records. The Supreme Court ultimately agreed. The court concluded that private records in the exclusive ownership and control of individual commission members on their private cell phones and in their private email accounts are not “public records” held by a “public agency” for purposes of the Open Records Act. The reasoning rested on constitutional distinctions between “members of boards and commissions” and “inferior state officers” — a distinction formalized by a 1992 constitutional amendment — and on the logic that commission members can only officially act when meeting together as a body. The court was candid about the risk it was accepting. It acknowledged the concern raised by the lower courts that bad actors with nefarious intent might subvert the Open Records Act by using private devices to conduct government business, but concluded this alleged “loophole” cannot justify reclassifying private documents as public ones in contravention of the clear language of the ORA. The court passed the problem to the legislature, noting it is within the General Assembly’s authority to require all governmental volunteers to be issued government email accounts, or to declare that each commission member constitutes a “public agency” for purposes of the law. That deference may be legally appropriate. It is nonetheless deeply unsatisfying. The court itself acknowledged that this case exposed the problems inherent in not providing commission members with the means to conduct government business in a way that would automatically create records the Commission can review and use to respond to open records requests. When the same legislature that passed HB 520 is also the body the court is relying upon to close this loophole, there is little reason for optimism. #### A pattern, not an accident The[Bluegrass Institute](https://bluegrassinstitute.org/), the[Kentucky Open Government Coalition](https://kyopengov.org/), the[ACLU of Kentucky](https://www.aclu-ky.org/), and[Americans for Prosperity Kentucky](https://ky.americansforprosperity.org/) share a commitment to the principle that government must be transparent and accountable. For some of us, that principle begins with making government at all levels more transparent and responsive to the taxpayers who fund it, shining light on corrupt contracts and illegal secret meetings. For some of us that principle begins with expanding public awareness of open records and open meetings laws and to preserving what remains of these once robust laws. In any case, those commitments reflect a broader understanding: government secrecy is not a conservative, progressive or libertarian value. It is a government value — one that serves government institutions instead of people. What is happening in Kentucky is a pattern. Proposals have emerged to eliminate the court appeals process for denied requests for legislative branch records, replace the Attorney General with the Legislative Research Commission as decision-maker on open record petitions, and exclude non-Kentucky residents from accessing records under the Open Records Act. State legislatures watch one another. If a state succeeds in passing laws that decrease transparency and accountability, they become an example for another state to follow. The machinery of accountability does not break all at once. It rusts quietly — through word changes in statutes, through the practical consequences of court rulings, through the slow accumulation of loopholes that each, in isolation, seem defensible. When transparency advocates urge Kentuckians to[file open records requests before new laws take effect](https://kyopengov.org/blog/hb-520-takes-effect-june-27-get-your-requests-investigative-records-now), they are not being alarmist. They are being realistic about how access disappears: not with a proclamation, but with a deadline. Kentucky’s Open Records Act has survived for nearly half a century because successive generations understood this: The public’s right to know is not a mere courtesy extended by government. It is a condition of self-governance. That condition is now being renegotiated — and the public, by and large, is not at the table. The time to insist on a seat is now. _[Caleb O. Brown](https://www.bluegrassinstitute.org/author/calebobrown/) is CEO of the[Bluegrass Institute](https://www.bluegrassinstitute.org/). Amye Bensenhaver, a director at the[Kentucky Open Government Coalition](https://kyopengov.org/), is a retired assistant attorney general whose 25-year career in the Kentucky Attorney General’s Office focused exclusively on the Open Records and Meetings laws.[Kate Miller](https://www.aclu-ky.org/bios/kate-miller/) is advocacy director at the[ACLU of Kentucky](https://www.aclu-ky.org/). Heather LeMire is state director for[Americans for Prosperity Kentucky](https://ky.americansforprosperity.org/)._ ## Sources - [Kentucky Lantern](https://kentuckylantern.com/2026/06/08/kentuckys-open-door-on-government-transparency-is-closing/)