Investigations

If your doctor, social worker or therapist has violated professional standards, you have a right to that information under the open records law. But that could change under a bill before the state Senate.

The purpose of the 269-page bill is a reorganization of Kentucky’s licensing boards. But the bill also includes new language allowing discipline to be meted out via “a public reprimand or private letter of admonishment.”

The bill passed the House this month and must clear the Senate Licensing, Occupations, and Administrative Regulations committee to be considered by the full Senate.

State Sen. John Shickel, a Republican from Union and the committee co-chair, said the committee won’t vote on the bill this session, but will consider it during the interim session instead. He was not aware of the language about private admonishments.

“Transparency is always a concern,” he said. “I don’t know what the reason for the change was, but it’s such a lengthy and long bill, which is why I referred it to the interim session.”

The bill would apply to all 43 state licensing boards, which cover everything from hairdressers to auctioneers to social workers to doctors and nurses. Under the current law, only a handful of boards — such as those regulating veterinarians and physical therapists — can use private admonishment, which is not available to the public.

That one sentence about private admonishment is giving open government advocates pause because it could prevent Kentuckians from accessing important information about professionals they hire — including their health care providers.

“In some instances, literally, public health is at risk,” said Amye Bensenhaver, the director of the Center for Open Government at the Bluegrass Institute. “To codify this right to issue private admonishment for all of these licensure boards raises serious concerns.”

Rep. Adam Koenig, a Republican from Erlanger, proposed House Bill 465. He said the Public Protection Cabinet suggested the language about private reprimands, but he wasn’t concerned by it.

“The intent is not to thwart transparency, the intent is to give another level of disciplinary action that doesn’t rise to the point of previous options,” said Koenig.

Some boards that currently use private admonishments reserve them for lesser offenses, and Koenig said that is the idea behind this bill. But the bill doesn’t say that. An authority could skirt the open records law by relying entirely on private admonishments if it wanted to, said Bensenhaver.

“Probably most licensure boards operate in good faith, but there is no guarantee,” said Bensenhaver. “That’s why we have an open records law that enables us to verify that there is uniform enforcement about whatever disciplinary action is taken.”

Barry Dunn, general counsel for the Public Protection Cabinet, didn’t respond to a request for an interview. He instead emailed a statement through a spokesperson that described the bill and noted that several boards already issue private admonishments.

Koenig said he would be open to changing the language if there was a serious concern about transparency.

“To be perfectly honest, until you brought it up, it was an afterthought,” he said.

This is at least the second bill this session to raise concerns about open records access.

An amendment to House Bill 302 tacked on by Senate Majority Leader Damon Thayer would exempt phone calls, text messages and emails sent or received on a privately-owned device from public records disclosure. Official business transmitted through a personal email account would also be exempted.

Senate leadership fast-tracked that bill, but it was removed from the consent calendar after several Democrats protested. If the Senate approves the measure, the bill with Thayer’s amendment will return to the House for a vote.

Thayer, a Republican from Georgetown, said this language merely codified an existing ruling from former Attorney General Jack Conway, issued in his final days in office. The amendment is attached to a bill that also addresses the reorganization of the Public Protection Cabinet.

“I don’t know if it’s a trend, but there is a confluence of legislation where the net outcome would be to divest the public of their right to know,” said Bensenhaver.

Contact reporter Eleanor Klibanoff at eklibanoff@kycir.org or (502) 814.6544.

Eleanor Klibanoff covered Rust Belt decline and revival in Pennsylvania. She also worked for NPR and attended the George Washington University.