Written by KPA general counsel Jon Fleischaker and Michael Abate.
SB 62 is an unconstitutional proposal that goes well beyond its drafter’s stated purpose. The bill’s ill-advised, overbroad provisions unconstitutionally restrict the public’s First Amendment right to access court proceedings and will burden Kentucky’s courts with frivolous lawsuits. If passed, SB 62 will—for the first time—authorize personal civil and criminal liability for the disclosure of truthful information legally obtained. Its broad scope is inconsistent with current Kentucky law (including the Open Records Act) and will create far more problems than it solves. The Kentucky Press Association implores the General Assembly to reject SB 62 unless significant changes are made.
SB 62 is purportedly an effort to codify Americans for Prosperity Foundation v. Bonta, 210 L. Ed. 2d 716(2021). That case stands for the proposition that charitable organizations cannot be compelled by the state to provide their donor’s names and contribution amounts. Bonta continues a long line of Supreme Court precedent affirming Americans’ right to speak and assemble anonymously. The Kentucky Press Association supports that fundamental right. However, SB 62 extends far beyond Bonta’s holding and threatens Kentuckians’ First Amendment rights the bill claims to protect.
SB 62 unconstitutionally restricts the public’s and press’s right to access court proceedings. Ky. Const. § 14 (“All courts shall be open.”). Public court proceedings have been a foundational principle of American jurisprudence “from time immemorial.” Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S. Ct. 2814 (1980). Section 3 of this bill turns that right on its head and presumes the non-disclosure of “personal information” during the discovery process. Worse still, it goes on to prohibit a court from allowing “personal information” into the public court record without first finding “good cause.” In other words, under SB 62 courts must default to sealing and redacting “personal information” from the court record and closing otherwise public trials to the press and public if “personal information” is presented. That is not how constitutional rights work. The General Assembly cannot legislate away federal and state constitutional provisions it finds inconvenient, but that is exactly what SB 62 attempts to do.
SB 62’s unconstitutional censoring of court proceedings is amplified by its exceptionally broad scope. The bill prohibits disclosure of the “personal information” of all supporters of nonprofit organizations. That term is defined to include: “any list, record, registry, roll, roster, or other compilation of data of any kind that directly or indirectly identifies a person as a member, supporter, volunteer, or donor of financial or nonfinancial support to any nonprofit organization.” That definition far exceeds the anonymity protections affirmed by Bonta and will make it impossible to fully assess the qualifications of political appointees. It will be illegal to disclose, for example, whether a nominee to the Cabinet for Health and Family Services contributed to Planned Parenthood; a judicial nominee contributed to the Federalist Society; or the Commissioner of Kentucky State Police contributed to the Police Benevolent Association Charity Fund. Under SB 62, the employee files and resumes of government officials will need to be scoured for reference to prior nonprofit affiliations and redacted before they can be made public.
That begs the question: how will records custodians tasked with finding and redacting “personal information” determine whether an organization is a nonprofit protected by the bill? SB 62 does not provide an answer. That question is important because SB 62, for the first time, imposes civil and criminal liability on civil servants who answer incorrectly. Section 4 imposes fines of at least $2,500 per violation. If a records custodian is deemed to have “knowingly” violated the bill they are guilty of a Class B misdemeanor and subject to 90 days imprisonment and a fine of up to $1,000. These draconian penalties do nothing to further SB 62’s purported goal and will result in a flood of lawsuits trying to cash-in on unwitting civil servant’s incidental disclosure of mostly benign information.
Finally, other provisions of SB 62 are unnecessary and conflict with Kentucky’s Open Records Act (the “ORA”). For example, Section 3(1)(g) upends current open records law that requires nonprofit organizations affiliated with public agencies to disclose their donors upon request. Cape Publications, Inc. v. Univ. of Louisville Found., Inc., 260 S.W.3d 818 (Ky. 2008). That Supreme Court opinion affirms Kentuckians’ “interest in the function” of nonprofits affiliated with public agencies, particularly the use of donations to purchase “influence [over] the [public agency’s] decisions and policies, or to have some benefit conferred upon them by [the public agency].” SB 62 eliminates the public’s ability to oversee these institutions upon a donor’s request to remain anonymous.
Section 2 exempts the broadly defined “personal information” from production under the Act. That term is entirely unnecessary because that information will no longer be collected by government agencies under the bill. Moreover, the ORA’s personal privacy exemption already exempts from disclosure “information of a personal nature” where disclosure “would constitute a clearly unwarranted invasion of personal privacy.” KRS § 61.878(1)(a). SB 62’s significantly broader definition risks confusing well-established Kentucky open records law and preventing the public from accessing vital public records.
PROPOSED CHANGES TO SB 68
The Kentucky Press Association would not oppose a statute that codifies Bonta’s narrow holding without infringing on Kentuckians’ constitutional rights and exposing records custodians to frivolous lawsuits and serious financial liability. The Association recommends the following changes to SB 62:
- Exempt the judicial branch from SB 62’s restrictions by removing Sections 3(1)(c)(1)-(2) and 3(1)(d).
- Replace all references to “personal information” with “donor information.”
- Limit SB 62 to the collection of information by removing Section 2(1)(b) and 2(2).
- Remove all civil and criminal liability created by Section 4. Alternatively, add language to Section 4 that limits standing to individuals whose personal information has been wrongfully released and language that designates the public agency as the proper defendant.
- Edit Section 3(1)(g) to remove the option for a person to request anonymity from a nonprofit organization that is affiliated with a public agency.
The bottom line is that SB 62 is an unconstitutional and redundant bill. The Kentucky and Federal Constitutions simply do not allow the General Assembly to close portions of public court proceedings. The bill goes well beyond the Supreme Court’s holding in Bonta and will create unnecessary burdens for Kentucky’s courts and civil servants without any corresponding benefit. Its broad application will undermine the Open Records Act, which has been a model for the nation and safeguards Kentuckians’ right to know how their government acts in their name. The bill must be rejected unless significant changes are made.