From states creating a “vexatious requester” label to government agencies redefining what is a government record, here’s a breakdown of state legislation in Colorado and Kentucky that would change how public records are accessed.

Stay tuned for next week’s For the Record column where we continue to explore state legislation and public records laws. Have a tip or submission to include in For the Record? Email MuckRock’s engagement journalist, Kelly Kauffman, at kelly@muckrock.com.

Colorado’s ‘vexatious requester’ bill

What the bill would do:

Colorado House Bill 24-1296 would make a number of changes to the Colorado Open Records Act. Perhaps most notably, it would allow government agencies to designate a requester as “vexatious,” defined as someone demonstrating an “intent to annoy or harass” a records custodian, agency or someone else, through their public records requests.

If you’re labeled as “vexatious,” custodians could delay processing your requests, for up to 30 days.

The proposed House bill also notes that someone should not be deemed as “vexatious” solely due to the number of public records they are seeking and that news organizations and journalists are exempt from the label. That carveout was added after journalists objected to the legislation and met with the bill’s sponsor, state Rep. Cathy Kipp, a Democrat who represents northern Colorado.

As currently constructed, the Colorado Open Records Act mandates a quick turnaround time for records requests. The law says that records must be made available for inspection within three business days. This three-day period can be extended for an additional seven days in cases of “extenuating circumstances,” such as when a request to a legislator is filed during the legislative session.

Among the other changes included in the proposed legislation: It would require records custodians to evaluate a request for public records “promptly and for no longer than 2 days;” it would add an extenuating circumstance that allows for processing extensions when the custodian is not scheduled to work; and it would allow custodians to determine when a request is made for the “direct solicitation of business for pecuniary gain” — for financial gain — and allow them to recoup associated labor and costs related to the request.

Why it was introduced:

In short, it’s to make life easier for records custodians and government agencies.

Introduced in February by Kipp, a Democrat who represents Fort Collins and Loveland, House Bill 24-1296 aims to “lessen the burdens of responding to records requests for custodians of records under the ‘Colorado Open Records Act.’”

In an interview with Colorado Public Radio, Kipp said she’s been “hearing a lot of stories from our local governments, particularly as things have become increasingly politically heated over the last several years, that there’s been a lot what I would call abuse of the Colorado Open Records Act. There have been cases where people have filed CORA requests on a particular organization every single day or every three days or whatever that number might be.”

How Freedom of Information advocates view the legislation:

Not well.

“If enacted, this bill will create additional obstacles to obtaining public records at a time when Coloradans already face a very significant increase in fees, which themselves are a barrier,” Jeffrey A. Roberts, executive director of the Colorado Freedom of Information Coalition, told MuckRock.

Roberts also considers the “vexatious requester” label another barrier to the public’s ability to access government records.

“The bill that passed a committee in early March lets records custodians take longer to process requests, and it gives them the power to take certain requesters to court and have them deemed ‘vexatious,’” Roberts said. “While the bill exempts the news media from these provisions, the public in Colorado doesn’t need more barriers to obtaining government information.”

Colorado good government groups are also concerned about the increase in public records research-and-retrieval fees, which could rise by more than 20% on July 1.

Under Colorado’s House Bill 14-1193, the Colorado Open Records Act’s research-and-retrieval rate must be adjusted every five years according to the Consumer Price Index. The Colorado Freedom of Information Coalition estimates that the maximum hourly rate governments could charge would jump from “from $33.58 to around $41.34,” due to inflation.

What’s next:

House Bill 24-1296 has been sent to the State, Civic, Military, and Veterans Affairs committee in Colorado’s House of Representatives and is under consideration.

Kentucky’s ‘official email search’ bill

What the bill would do:

Kentucky House Bill 509 would make substantial changes to the state’s Open Records Act. One of the changes would limit what public agencies would include in a public records search. If passed, the bill would only allow for searches of a “electronic device or system that is the property of, or under the control of, the public agency” or an “email account that is an agency-furnished or agency-designated email.”

Employees of public agencies would also not be allowed to “use an email account other than an agency-furnished email account or agency-designated email account to conduct the business of the public agency.” If an employee was found in violation, by using a personal email account, the employee “shall be subject to appropriate discipline by his or her agency’s appointing authority or governing body.”

The bill would also have the name, email address and appointment date of any member of a government board of commission published “on its website for the duration of the appointed board or commission member’s term.”

The original version of the bill would have amended the definition of a “public record,” but before the House vote, much of the language was stripped from the House bill, according to Spectrum News.

Why it was introduced:

Sponsored by State Rep. John Hodgson (R-Jefferson), Speaker of the House Rep. David W. Osborne (R-Oldham) and Majority Whip Rep. Jason Nemes (R-Middletown), House Bill 509 attempts to make “Kentucky law consistent with federal FOIA regulations,” Hodgson said in a statement to MuckRock.

While the bill was originally introduced to also include amendments to the state’s definition of a public record, Hodgson shifted focus to requiring email addresses for state employees and described an “undesirable situation where those board members may have used personal devices and emails to communicate regarding agency business.”

“HB509 requires agencies to provide (at least) an official email account, and subjects employees and board members to discipline or dismissal if they divert business outside official communication channels. Having complied with this policy, agencies have no obligation to extend a records search to non-agency devices or platforms,” Hodgson said.

How Freedom of Information advocates view the legislation:

Despite promises to modernize Kentucky’s Open Records Act and have it be consistent with the federal FOIA law, transparency groups in Kentucky sounded the alarm against the bill from the outset.

Amye Bensenhaver, co-founder of the Kentucky Open Government Coalition, said that the bill “does not attempt to capture text [messages] at all.”

“In reality, lawmakers are hellbent on creating a legally-approved mechanism for secret discussion of public business on private devices and accounts. Their cover is the absurd claim that assigning public email addresses to all public employees, officers, etc., and threatening discipline if they don’t use their public accounts, will eradicate the problem.” Bensenhaver said in a statement to MuckRock.

“The hard fact is that if this bill passes, it will encourage the very practice it purportedly prohibits and decries. Kentuckians will never know what, and how much, they do not know, because it will be shielded by an impenetrable statutory barrier,” she said. “Both the open records and the open meetings laws will be a shadow of their former selves.”

Radio Television Digital News Association President Dan Shelley also wrote a letter to Kentucky’s legislative leadership, objecting to the bill.

“If the public doesn’t know something is wrong because they can’t access public records, how are they going to demand that their lawmakers and their governor fix it?” he asked in his letter, according to WKYT.

What’s next:

The Kentucky House of Representatives passed House Bill-509 by a vote of 61 to 31 this month and the bill now heads to the state Senate for consideration.

The Update

• How to FOIA from WaPo: The Washington Post’s Freedom of Information Act director Nate Jones created an illustrative guide on how to obtain public records, including his best strategies, tips and secrets.

• Fundraiser for journalist sued by the city of Los Angeles: Knock LA is having a fundraiser for one of their reporters who is being sued over a records request. The city of Los Angeles took legal action against reporter Ben Camacho and the Stop LAPD Spying Coalition for posting more than 9,000 photos of Los Angeles Police Department officers, after obtaining them through a public-records request.

• New bill in Utah exempts elected officials’ calendars: In Utah, Gov. Spencer Cox signed a bill into law that rewrites the state’s open-records law to exempt the calendars of elected officials and state employees, reports Bryan Schott in the Salt Lake City Tribune.

FOIA Finds

• California city’s use of AI to spot homeless encampments: According to interviews and documents the Guardian obtained through public records requests, the city of San Jose invited tech companies to mount cameras on municipal vehicles, with the images being fed into the companies’ algorithm to automate surveillance of homeless encampments, reports Todd Feathers.

• Portions of the FBI’s file on activist nun released: In response to a records request by Reuters news application editor Ben Welsh, the FBI has released portions of its file on Sister Ardeth Platte, an activist nun who spent time in jail for her protests against nuclear weapons. The request and the documents are available on MuckRock.

• U.S. trade agencies’ attempts to weaken toddler formula regulation: Documents obtained from Freedom of Information Act requests show that representatives of U.S. trade agencies aggressively sought to weaken the World Health Organization’s resolution to limit marketing and promotion of foods aimed at infants and young children, reports Lucas Waldron and Heather Vogell in ProPublica.