The Kentucky Supreme Court ruled in a 4-2 decision Thursday that public officials do not have to disclose public business conducted on their private email or cell phones under the Kentucky Open Records Act.
Government transparency advocates — and the dissenting opinion of justices — said the decision could "eviscerate" open records access in the state, as it may encourage public officials to conduct their work on personal devices for the purpose of shielding it from the public.
The case involves the Kentucky Department of Fish and Wildlife Resource Commission denying an open records request from the Kentucky Open Government Coalition for communications between commissioners, who had no state-issued email address or phone number at the time. While the commission argued that records on their private email and cell phones were not public, the Kentucky Court of Appeals sided with the coalition, ruling that messages on these personal devices are public records when created for or used during government business.
“This is, in my view, the darkest hour for open records,” said Amye Bensenhaver, the co-founder and co-director of the Kentucky Open Government Coalition. “It does, in fact, as Justice [Shea] Nickell said, eviscerate the law, and I don't see a way to not jump off the ledge.”
The Supreme Court’s majority opinion, penned by Justice Kelly Thompson, ruled the Open Records Act only applies to records held by a public agency. Since individual members of the commission can’t be an agency in and of themselves, he wrote, they don’t have to hand over their correspondence while conducting public business.
“While we recognize the importance of the Open Records Act in allowing for private oversight of the government’s actions, the Commission members are categorically excluded from individually having the status of a public agency and thus records in their personal possession cannot qualify as public records,” the opinion reads.
Thompson’s decision also stops short of requiring the executive branch to change any of its policies to ensure that the intent of the Open Records Act remains intact. He said lawmakers could act if they choose, or the executive branch could change its policies. For example, by prohibiting government and elected officials from using private devices to conduct public businesses, or changing the definition of what counts as a public agency.
“It is our legislative branch’s responsibility to make such decisions, and we will not engage in legislating from the bench simply because the General Assembly has not yet acted,” Thompson wrote.
A strong dissenting opinion by Justice Nickell rejected Thompson’s argument. Nickell wrote that operating on private devices “cannot transform the public’s business into private matters.”
“If citizens may be deprived of their right to know what their governmental agencies are doing by the simple expedient of maintaining communications channels on private accounts and devices, the essential policy of the ORA to ensure free and open examination of public records would be eviscerated and the entire open records system could devolve into chaos,” Nickell wrote.
Nickell disagreed that an otherwise public record is “transformed into a private record simply because it does not reside in a government-controlled repository” and found this exclusion “not only troubling, but also contrary to the law and logic.”
“A categorical exclusion of text messages found on personal cellphones or messages located on private servers or accounts would be antithetical to the core purpose of the ORA and would encourage public officials to utilize personal devices and accounts to place vital public records beyond the reach of citizens,” Nickell wrote.
Louisville Public Media is embroiled in its own lawsuit against government officials who conducted public business on private devices. LPM sued Jefferson County Public Schools for text messages sent between top district officials on the disastrous first day of the 2023-24 school year, when there were massive busing delays and errors. The status of that lawsuit given the Thursday decision is now in question, despite a Jefferson Circuit Court judge initially siding with LPM.
The JCPS case is a clear example of why journalists frequently seek records on private devices — in the midst of controversy and crisis, public officials may turn to private devices to carry out important communications that can have far reaching consequences. In a statement, LPM President and CEO Kenya Young said the public has a right to know how decisions are made, regardless of the device on which that information is held.
“When public officials can conduct government business on personal devices and personal accounts, protected from review, the work of government risks moving out of public view,” Young said. “That is a weakening of transparency and of democracy itself.”
Bensenhaver said the decision essentially gives officials the green light to conduct business on private devices to which the public will never gain access.
“What they are doing is giving a free pass to anyone who wants to avoid scrutiny, to conduct the public business on a private device or account and thereby evade their statutory duties under the open records law,” Bensenhaver said.
