KY public officials can’t use private cell phones to conduct public business | Opinion

While open government advocates rhapsodize about every judicial victory that advances the cause of public agency accountability, it is nearly impossible to overstate the importance of the Court of Appeals’ October 27 opinion in “Kentucky Open Government Coalition v Kentucky Department of Fish and Wildlife Resources Commission.”

One pundit tweeted that the court’s opinion makes it “mildly inconvenient” for public officials to “coordinat[e] through personal electronics.” In fact, it does a great deal more.

Kentucky Attorney General Daniel Cameron’s 2021 “decision” to ignore the expansive definition of the term “public record” — and to focus exclusively on those records in the public agency’s physical possession — posed the gravest threat to the existence of the open records law to date. Public officials determined to evade public scrutiny rushed to their private cellphones and personal email accounts to conduct the public’s business — free, in Cameron’s view, from public oversight. No less than the future of the public’s “right to know” rested in the balance.



To be sure, the Kentucky Open Government Coalition’s role as torchbearer for the public’s right to know was a “right place, right time” opportunity we welcomed. It was our privilege to “represent” the public’s interest in litigation against a public agency that refused to assign its commissioners a public email address, posted their private email addresses as the point of contact for commission business, expressed open contempt for the laws in videotaped open records and open meetings training, and ultimately refused to acknowledge the public status of the commissioners’ agency-related electronic communications on those private accounts.

But it is to the Coalition’s litigation “team” — attorneys Michael Abate and Rick Adams of Louisville’s Kaplan, Johnson, Abate & Bird — that we, and all Kentuckians committed to the principles of open, transparent, and accountable government, owe a tremendous debt of gratitude.

In a 32 page opinion authored by Judge Jeff Taylor, the Court of Appeals declared:”[Electronic] messages stored on personal cell phones are public records when such messages are prepared by or used by the members of the Commission and relate to or concern Commission business.” Fundamental to the appellate court’s analysis was the expansive statutory definition of the terms “public record” and “public agency,” and a rejection of the Commission’s privacy and undue burden arguments. But at a basic policy level, the opinion emphasized that:”To hold otherwise would certainly defeat the underlying purpose of the Open Records Act as public officials could easily evade disclosure of public records by simply utilizing their personal cell phones.”

With respect to these electronic communications, the court continued: ”It is beyond cavil that the Commission members have custody or control over text messages stored on their personal cell phones, and as either agents of the Commission or as officials thereof, the Commission members are bound by the Open Records Act.

Judge Sara Combs and Judge Chris McNeill concurred, the latter filing a separate opinion to “assuage any concerns the Kentucky Open Records Act requires public agencies to turn over private cell phones” or mandates wholesale disclosure of “all public records generated on private cell phones or private email accounts.” “Our Opinion,” wrote McNeill, “holds that ‘text messages [or emails] related to Commission business and stored on personal cell phones [or personal email accounts] of its members are public records generally subject to disclosure under the Open Records Act absent an applicable exception.’”

Judicial understatement at its best. Once final, the opinion will settle the often heated debate. Electronic communications concerning public business exchanged by public agencies (and their official and agents) are public records and therefore subject to the Open Records Act. These communications must be managed and retained as such, and certainly cannot be deleted at will. The communications are open to public inspection, if requested under the Act, unless they fall under one or more of the exceptions to the Act. The Attorney General’s position — whose dangers were compounded by the ubiquitous nature of electronic communication to conduct public business — is effectively dead.

It’s likely that we have not heard the final word in this case. The Kentucky Department of Fish and Wildlife Resources Commission may ask the Kentucky Supreme Court to review the Court of Appeals’ opinion. If so, we wait. And make no mistake. Every judicial victory can be, and often is, met with an equal and opposite legislative defeat. For example, request the public records of the General Assembly, or the records of its administrative arm, the Legislative Research Commission, and that august body legislated itself and LRC out of the open records law.



It will be up to each of us who values what remains of open government to closely monitor legislative skullduggery aimed at undermining our nearly 50-year old right to know -- especially “last-minute mule bill shenanigans” — as the upcoming session proceeds. It will be incumbent on us— Republican, Democrat, and Independent, right leaning and left leaning, conservative, moderate, and progressive — to speak with one voice in vigorous and unyielding opposition to legislative attempts to undermine our open government laws.

Amye Bensenhaver is co-founder of the Kentucky Open Government Coalition and former assistant Attorney General.