There were 25 bills during this session which so threatened press and public rights to information that KPA felt compelled to oppose them actively. We tracked another seven because they contained language dealing with access to records and we wanted to make sure that right was not amended away during the session. Of all these bills, only four that really concerned us passed both chambers and were signed by the governor.

Telemarketing

House Bill 47, the multi-sponsored bill regulating telephone solicitation (and the subject of another column), was one of the first bills to make it to the governor’s desk this session. He signed it on Feb. 6. This bill created the “zero call list” and added a few additional hoops through which companies which telemarket (or the telemarketing firms which do it on their behalf) must jump. HB 47 deleted the exemption enjoyed by newspapers under the old law for solicitation of subscriptions. That means beginning July 15, newspapers must be sure to comply with the labyrinthine array of dos and don’ts when making calls to potential subscribers.

Two other bills, which the governor signed in April, relate to crimes: HB 130 and HB 133. HB 130 was sponsored by Rep. Jimmie Lee and it created a new crime of “video voyeurism.” Video voyeurism means photographing or videotaping certain body parts or sexual acts without the individual’s consent and publishing the videotape by some electronic means.

Of course, KPA has no official position whether video voyeurism is or should be a crime. Our objections were to a section of HB 130 which dictates what will happen with the photographs, films or videotapes if the video voyeur is prosecuted in court. In that situation, no matter the circumstances, HB 130 requires the court to seal the photographs, film and videotapes that are introduced into evidence. And, at the conclusion of the case, HB 130 requires the court to destroy those records.

Rep. Gippy Graham incorporated this troublesome language into his HB 133. This bill also prohibits photographing or videotaping certain body parts or sexual acts without permission. Unlike Lee’s HB 130, taking the photos is, by itself, a violation of this bill. It does not require any publication of the resulting photos or videos. It does, however, require the court to seal the photographs and videotapes in the court record, and requires the court to destroy them when the case is over.

When these bills, traveling in tandem, reached the Senate floor, Sen. David Karem filed a floor amendment that would have removed the requirement that the court automatically seal and destroy the photographs and videos. Instead, the victim would have the right to ask the court to seal that evidence and the court would have to follow the procedure outlined by the U.S. Supreme Court and Kentucky Supreme Court for closing courtrooms or sealing court files.

Unfortunately, those floor amendments failed and these two bills passed both chambers. Since court records are the primary way the public learns and understands what is going on in its courts, the KPA opposes efforts like this to seal or destroy court records. Thanks to HB 130 and HB 133, court observers will not be able to review the key evidence in the court record of these voyeurism cases.

Names of Jurors

According to the statute on the books before the 2002 General Assembly, the names of jurors drawn from the prospective juror list “shall be made available to the public.” KRS 29A.060(13). HB 781 changes that. This bill started out as an effort to raise the pay for jurors, but along the way, that provision was deleted. HB 781 alarmed the KPA because it struck from the statute the language requiring juror names to be made available to the public.

During a legislative committee meeting, Rep. Bob Heleringer attempted to negotiate an amendment which would require names of jurors to be made public unless the judge, for good cause, granted a juror’s motion to seal his name for his protection. Unfortunately, the amendment failed after a lengthy debate.

Despite that, all may not be lost. HB 781 amended another section of the existing law regarding jury selection to say that information used in connection with the jury selection process – which would include juror names – may be made public “upon order of the Chief Justice” of the Kentucky Supreme Court. The chief justice has established a Jury Study Commission which, among other things, will be looking at amendments to the Rules of Administrative Procedure for the courts. The KPA has been invited to participate in that commission and we are hopeful that a rule permitting public access to juror names will be a clear result of the Commission’s work.

The rest of the bills we followed were not enacted.

Juror Names

Two other bills were introduced which would have made juror names unavailable to the press and the public: HB 265 (sponsored by Rep. Keith Hall and others) and SB 263 (sponsored by Sen. Bob Stivers). Of the two, Sen. Stivers’ bill was less troublesome, since it would have prevented us from getting a copy of the list of jurors but not from seeing the list in the circuit clerk’s office. However, when it became apparent that HB 781 was going to be enacted, the sponsors of HB 265 and SB 263 stopped pushing their bills and they died in committee.

Expungement of Court Records

There were three bills introduced which, if passed, would have required or allowed for expungement of particular court records. During the session, we sent you alerts about these bills: SB 97, HB 580 and HB 651. These are bills we actively opposed, testifying several times in committees and contacting numerous legislators for help.

SB 97 (sponsored by Sens. Dick Adams and Bob Stivers) came closest to full passage. After passing the Senate, it appeared to be breezing through the House when it was banished to the Appropriations and Revenue Committee. This bill would have permitted expungement of emergency protective orders – awarded primarily in cases of domestic violence – in certain circumstances.

After the expungement, SB 97 provided that “the proceedings in the matter shall be deemed never to have occurred.” In addition to our general objection to rewriting the history of proceedings in the courts, we objected to this bill because it would have concealed judges who are reluctant to enforce the EPO law. Some years ago a newspaper’s review of EPO records throughout the state revealed where those pockets of judicial resistance were. If SB 97 had become law, that type of across-the-board review would have become impossible.

Another expungement bill, HB 580, sponsored by Rep. Johnnie Turner, was particularly troublesome. This bill would have required automatic expungement of court records and all related law enforcement records for any defendant who was acquitted of the crime or who obtained a dismissal with prejudice on any grounds. No motion or hearing was required and there was no opportunity for anyone (the victim, the public, the press) to object. Fortunately, several members of the House Judiciary Committee agreed with the KPA’s view and HB 580 was defeated in committee.

The final expungement bill, HB 651, sponsored by Rep. Royce Adams, would have amended an existing statute which allows expungement of certain misdemeanor records upon motion of the acquitted defendant. This bill actually would have narrowed the scope of the existing statute, which would have been an improvement. However, even though the bill was posted in the House Judiciary Committee, it languished there.

Autopsy Records

The death of Dale Earnhardt in a racing accident spawned two bills which would have restricted public access to records of autopsies. HB 582, sponsored by Rep. Greg Stumbo, would have precluded the release of autopsy photos, videos, audio tapes or other visual images. It would have established criminal penalties for violations. This bill made no progress in the House. The other autopsy bill, HB 77, sponsored by Rep. Brent Yonts, passed the House.

This bill started out being much more restrictive than Rep. Stumbo’s bill. It would have precluded public access not only to photographs, videos and audio tapes, but also to the autopsy reports themselves and to all “associated records” of the coroner. Thanks to Rep. Yonts’ willingness to work with the KPA, the bill was amended in the House to apply only to photographs and videotapes. And a provision was included which would allow a member of the press or public to move the court for permission to view or copy a photograph or videotape of an autopsy for good cause.

The public still would have access to autopsy reports and there would be no sanction against family members who shared photographs with the news media. Ultimately, this bill did not become law. Another bill that would have made autopsy reports, photographs and associated records private was SB 17. Its sponsor, Sen. Ray Jones, withdrew his bill.

Newsgathering

A bill filed by Rep. Keith Hall, HB 119, would have had a devastating effect on many news reporters’ newsgathering practices, as the bill originally was written. HB 119 would have amended the statutory definition of eavesdropping to eliminate the one-party consent rule. Of course, Kentucky has operated under this rule – which states that a party to a conversation may surreptitiously record that conversation – for many years. Lots of reporters, for very good reason, record interviews with many sources.

A floor amendment, for which KPA lobbied, would have exempted journalists engaged in newsgathering activities. Even with that modification, the bill was troublesome and several newspapers editorialized against it. It did not clear the House.

Open Records/Meetings

We thought that SB 136, sponsored Sen. Dick Roeding, was on the fast track through the General Assembly. This bill would have amended the Open Records Act and the Open Meetings Act to make confidential information related to security in airports, public hospitals and every facility owned, leased or operated by state government. It was very broadly written and KPA feared it would be used by many public agencies to justify turning down records requests which were only remotely – if at all – related to security. The bill would also close public meetings at which such security information was discussed.

Whenever SB 136 was discussed in committee or on the Senate floor, senators lined up to proclaim their patriotic support for, and the virtues of, this bill in the aftermath of Sept. 11. KPA’s efforts to restrict the overly broad scope of the bill and to insert a two-year sunset clause into it were rejected.

Before the session began, Gov. Patton’s office had examined whether a measure such as SB 136 was necessary because of the events of Sept. 11. Patton had concluded that it was not, and that the existing open records and meetings laws would suffice. Perhaps that sentiment held some sway when SB 136 arrived at the House. It was bottled up there.

A bill sponsored by Sen. Dick Adams, SB 19, did not progress through the Senate. That bill would have expanded to seven days (from the current three days) the time an agency had to respond to an Open Records Act request.

HB 172 would have amended the Open Records Act to prohibit the disclosure of public records for commercial purposes. The bill’s language was too broad to be enforceable without grinding the business of state government to a halt. Its sponsor, Rep. John Vincent, agreed to work with the KPA’s concerns. He ultimately withdrew the bill.

Perhaps the most disturbing bill relating to open meetings/records was SB 281, sponsored by Sen. Walter Blevins. This bill would have taken from the attorney general the responsibility of writing open records and open meetings opinions. It would have created a new Open Records Commission made up of five appointees. This commission would review any open records and meetings appeals.

In our view, there’s nothing “broke” about the current system. The attorney general’s office has greatly improved its turnaround time on responding to open records/meetings appeals and meets its statutory deadline more often than not these days. That office has developed an expertise in the interpretation and application of the open records and meetings laws.

The process is operating as smoothly as possible. Why, then, replace it with a five-member commission? These commissioners, who will likely all have full-time jobs, would not be available to meet regularly enough to meet the same statutory deadlines for responding to appeals. It would slow the process down tremendously. It would also inevitably add to the cost of the process. We don’t see any benefits to this bill. Slots and Communication Excise Tax

Fifteen representatives sponsored HB 768, an effort to aid the thoroughbred horse racing industry in Kentucky by allowing electronic gaming at racetracks. The KPA’s review of this lengthy bill revealed a half-dozen sections which would have restricted public access to records or meetings. The bill drafters and sponsors were amenable to working with us and adopted all of the changes we proposed. So, had HB 768 passed, it would have posed no access concerns to the public or press.

Rep. Harry Moberly’s HB 865 was perhaps introduced too late in the session to be thoroughly studied by the House. That is probably fortuitous, since it would have imposed a 7.1% communications excise tax on the sales price of any communications services. This would include cable and satellite television, radio, Internet, telephone services (including cellular/mobile), telegraph, teletype, voice mail and other media. This bill could have had a far-reaching financial impact on a lot of newspapers which use these various media. HB 865 did not progress through the House but, like several of the other bills which did not pass this session, is expected to be reintroduced next year.

KPA put a lot of time and resources into this General Assembly. Our efforts, it appears, were largely successful. Thanks to all of the KPA member newspapers which helped the cause with calls, messages, e-mails and letters to legislators on particular bills. Your editorial commentary on some of the more troublesome bills was also extremely helpful.

There are several legislators who were willing to take public stands that favored the public’s right to information, sometimes by opposing or helping to modify troublesome language in bills; sometimes by agreeing to modify their own bills. In addition to those mentioned above, these legislators include: Rep. Bob Heleringer and Rep. Jeffrey Hoover (expungement bills) and Rep. Keith Hall (worked with us on his one-party consent bill).

If you wish to express your thanks, you may leave a message at 1 (800) 372-7181 or send a letter to the legislator at Legislative Offices, 701 Capitol Avenue, Frankfort, Ky. 40601.