Kentucky appeals court rejects gravest threat yet to the open records law

Published 12:30 pm Thursday, November 2, 2023

By Amye Bensenhaver

Kentucky Open Government Coalition

Open government advocates are inclined to rhapsodize about every judicial victory that advances the cause of public agency accountability and defeats government secrecy.

But it is nearly impossible to overstate the importance of the Court of Appeals’ Oct. 27 opinion in Kentucky Open Government Coalition v Kentucky Department of Fish and Wildlife Resources Commission.

One pundit tweeted that the court’s opinion keeps  it “mildly inconvenient” for public officials to “coordinat(e) through personal electronics.”

I think, perhaps, it does a great deal more.

How it began

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 open records law to date. Public officials determined to evade public scrutiny rushed to their private cell phones 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. It was their depth of knowledge, unwavering commitment, and skillful advocacy that convinced the appellate court and won the day.

Kentucky appellate court vindicates principles of open government

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:

“(B)oth the Commission and its members have a duty to produce public records within their ‘custody or control.’ KRS 61.872(4). 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.

“Therefore, we hold that text messages related to Commission business and stored on personal cell phones of its members are public records generally subject to disclosure under the Open Records Act absent an applicable exception.”

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, “merely 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.’

Thus, only those public records not covered by an exemption would be subject to disclosure.”

Judicial understatement at its best. In a world of legally sanctioned secrecy and subterfuge — not to mention legislative hyperbole aimed at falsely  arousing the concerns to which McNeill referred — this is enough.

This is more than enough.

Once final, the opinion will settle the often heated debate. Electronic communications concerning public business exchanged by public agencies (and their officials 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 open records act, unless they fall under one or more of the exceptions to the act.

Had the court reached a different conclusion?

Imagine if public agencies, their officials and agents, could avoid public accountability by simply relocating public records to “private” premises — a home file cabinet, desk, storage unit. Members of former Gov. Matt Bevin’s legal staff unsuccessfully tried this with executive pardon records. A Finance Cabinet legal action quietly restored those records to their rightful owners: the public.

The attorney general’s position that concealing public records on officials’ private devices and accounts — a position whose dangers were compounded by the ubiquitous nature of electronic communication to conduct public business — is effectively dead.

What lies ahead

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 Oct. 27 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 legislates 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.

For now, we celebrate the Oct. 27 opinion of the Kentucky Court of Appeals. The court got it right.

Amye Bensenhaver is a retired Kentucky assistant attorney general who authored open records and open meetings decisions for 25 years. She is co-founder and co-director of the Kentucky Open Government Coalition.