Kentucky Supreme Court says officials can hide public info in private phones, emails

The Kentucky Supreme Court ruled Thursday that public officials can conceal public business by conducting it on their private devices.

Ruling 4-to-2, the state’s highest court said the Kentucky Open Records Act does not cover material sent on private phones or through private email accounts, even if it concerns taxpayer-funded government affairs being discussed among elected or appointed officials.

Government watchdogs warn the decision essentially neuters the open records law that Kentuckians have relied on for half a century to monitor what their local and state governments are doing behind closed doors.

“I can’t recall a more dangerous affront to the open records and open meetings laws or one that is likely to have a more devastating ripple effect,” said Amye Bensenhaver, a former Kentucky assistant attorney general, now with the advocacy group the Kentucky Open Government Coalition.

To circumvent the open records law from now on, Bensenhaver said, public officials simply can put aside their government-issued device and switch to a private device — or log into a private account — before they share information they don’t want their constituents to know.

The case at hand involved the Kentucky Department of Fish and Wildlife Resources Commission, which is appointed by the governor.

The Kentucky Open Government Coalition used the open records law in 2021 to request texts and emails between Fish and Wildlife commissioners and two state legislators. The state agency provided hundreds of pages of documents in response.

Then it added that “several commission members use private email to conduct public business.”

The Open Government Coalition spent the next few years fighting the Fish and Wildlife commissioners in court over access to those records.

Meanwhile, the legislature drafted bills to narrow the scope of the open records law in ways that would make it harder for citizens to get their hands on public records.

However, the Kentucky Court of Appeals ruled in favor of the Open Government Coalition in 2023.

The Supreme Court reversed that decision on Thursday. It sided with the Fish and Wildlife commissioners.

“We conclude that private records in the exclusive ownership and control of individual commission members and former members on their private cell phones and in their private email accounts are not public records held by a public agency for purposes of the Open Records Act,” Justice Kelly Thompson wrote for the majority.

What Justice Kelly Thompson wrote

The Fish and Wildlife commissioners, who only meet on occasion, should not be considered a “public agency” the same way the full-time Department of Fish and Wildlife Resources is a public agency, Thompson wrote.

As such, they are entitled to privacy on their personal communication devices, he wrote.

“Commission members’ actions only result in public records being produced when they act as a body, such as when they meet and vote,” Thompson wrote. “In such circumstances, public records are produced by the commission and maintained by it.”

“Conversely,” he added, “when individual members are exchanging emails and texts with other people, even if these messages involve the duties of the commission, the members are not acting for the commission itself or doing anything that could bind the commission. Therefore, there is little basis for requiring disclosure of such messages as they do not and cannot result in action by the commission.”

If the legislature wants to expressly prohibit public officials from conducting public business on private devices or through private accounts, it can pass a law doing so, Thompson wrote.

“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.

What Justice Shea Nickell wrote in his dissent

In his dissent, Justice Shea Nickell warned that the majority’s opinion will darken the landscape for government transparency in Kentucky.

While it’s true that private citizens should be entitled to keep the contents of their private emails and texts to themselves, Nickell wrote, that’s not what the Open Government Coalition sought in this case. The group asked for — and was entitled to — records about a discussion within a state agency conducted by state officials.

“The majority ultimately conflates and contorts the issue to conclude that records created by agents, officials or employees of a public agency regarding the public’s business are somehow transformed into private records not subject to the Open Records Act simply because they are located on non-governmental devices or accounts,” Nickell wrote.

It was a serious mistake to consider the governing board of a public agency somehow apart and exempt from the open records law, Nickell wrote. That’s going to create more problems in the future, he wrote.

“By holding records created by the commission members about commission business are not subject to the Open Records Act, the majority eviscerates the public’s right to know what its government is doing,” Nickell wrote.

“Contrary to its lofty proclamations otherwise, the majority is, in fact, legislating from the bench by creating new classes of exempt persons and records which have never before existed under the Open Records Act,” Nickell wrote. “I cannot countenance such a result.”

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