To open government advocates, the effort to hide Louisville's bid was an outrage that soon got worse: A House committee approved the bill with an amendment barring residents outside Kentucky from obtaining public records on any subject.
Labeled a “wrecking ball” to the public records law, the bill stalled last March amid opposition. But opponents are anxiously waiting to learn whether a similar measure will be introduced again. “I fear that something’s going to drop and it’s not going to be good,” said Amye Besenhaver of the Kentucky Open Government Coalition.
Advocates like her in all 50 states are getting a new tool to help identify legislation like the Amazon bill that affect the public’s right to know — and give a glimpse of what's happening across the country.
The National Freedom of Information Coalition is launching a bill tracker that aims to find, in real-time, all pieces of legislation that affect government transparency in state legislatures. On its website, the coalition is releasing dashboards of pending or recent legislation in all states for Sunshine Week, an annual celebration of open government that runs from March 15-21.
One goal is to alert the public quickly so advocates can try to stop anti-transparency bills from becoming law or from spreading to other states. Another is to allow journalists and researchers to spot trends, ranging from efforts to expunge more court cases from the public record to preventing out-of-state residents from seeking documents.
In Kentucky's case, the tool could have helped flag the Amazon secrecy bill as well as legislation in states like Tennessee and Kansas to require more, not less, transparency around economic development incentives.
Daniel Bevarly, the coalition’s executive director, said tracking such bills is challenging because only a few states, such as Florida and Maine, require such legislation to state up-front that they would affect government transparency. The number of reporters covering statehouses also has dropped significantly in recent years, meaning there are fewer eyes watching legislative action.
Anti-transparency provisions are often buried deep in legislation, some of which may be about unrelated topics, Bevarly said. The new program could act as an early alarm system that blocks poorly written bills from becoming laws.
“Hopefully when we are tracking this, lawmakers will have a better idea that they are under close scrutiny by the public,” said Bevarly, whose group has state and regional affiliates representing 37 states.
The program uses software from Quorum, a Washington D.C.-based technology company, that scrapes the raw text of bills from all 50 state legislative websites once or more a day. That information goes into a database where key search terms can be used to identify a bill’s potential relevance to a group or an industry. Quorum has previously launched bill-tracking efforts for groups such as the Sierra Club, which has credited the program with helping mobilize its response to legislation that would ban protests around critical infrastructures such as pipelines.
The National Freedom of Information Coalition conducted a pilot program with Quorum on all 142,000 state bills introduced in 2019. It found that 13.6 percent of those, or more than 19,000, contained transparency-related search terms that the coalition wanted to track, including phrases such as “public record,” “open meeting” and “body camera.”
In a report on the pilot program in January, the coalition said that volume of bills was “too great” and turned up some that were extraneous. The coalition said the tracker would be more successful in the future as its members refine search terms and tailor them to each state. Eventually, the program could use machine learning to further inform its tracking and output.
Quorum co-founder and CEO Alex Wirth noted that most, but not all, of the coalition’s state affiliates tracked legislation and their methods for doing so varied greatly. He said his company is helping centralize that information “so that every state can be alerted when there is a piece of legislation.”
“That is the big value and the breakthrough, and the next step on that journey will be making that available to all of their coalition members and the general public,” he said. Coalition outreach manager Kelsey Ryan, who helped investigate secrecy in Kansas government when she was with the Kansas City Star, said the dashboard isn’t perfect yet but will allow for a “more analytical and thorough method for finding transparency-related bills."
“This is particularly true for states like my home state of Kansas, where legislators have a history of doing ‘gut-and-go’ bills — passing bills before the public ever has a chance to find out what the bill is about,” she said in an email.
Besenhaver, the Kentucky advocate, said she tracks legislation “the old-fashioned way” by reviewing the text of proposed bills. But she said her approach is not exhaustive and it takes good luck not to miss any potentially important provisions.
The Kentucky bill was introduced in February 2019 amid a pending lawsuit filed by the Louisville Courier-Journal newspaper seeking records about the city’s unsuccessful bid for Amazon’s “HQ2” project. The bill would have shielded all records related to “proposed economic development incentives not accepted" by businesses.
Dozens of cities and states offered Amazon tax breaks and other incentives worth hundreds of millions of dollars or more for the project, which ultimately went to Arlington, Virginia. Amazon abandoned its plan to build a second location in New York City after opposition from residents and politicians.
Some government agencies that did not land the project have sought to keep their bids secret, with varying degrees of success. In August, the Kentucky Court of Appeals ordered the Louisville Metro Government to release its records to the newspaper, but the ruling remains on appeal.
"It's pretty clear they were going to make some extreme concessions to try to bring Amazon in,” Besenhaver said. “The public needs to know that.”