Jefferson Circuit Court dealt the Jefferson County Public Schools a major defeat last week in Louisville Public Media’s appeal from JCPS’s partial denial of an open records request for “all communications and correspondence regarding student transportation on August 9, 2023, received or sent from several JCPS members, including Dr. Marty Pollio,” later expanded to “transportation information, including emails and texts that contained the words ‘bus,’ ‘buses,’ or ‘transportation.’”
Those requests produced suspiciously few responsive emails.
At issue in the case, LPM reporter Jacob Ryan explains, were “text messages between Dr. Marty Pollio and other members of JCPS from their personal cellphones about the busing incidents that were occurring on the first day of school” in 2023 — the date on which thousands of JCPS students fell victim to a disastrous school bus planning debacle.
In the course of the litigation, we learned that it is commonly (mis)understood among school officials statewide that using personal cellphones to communicate by text insulates those communications from the open records law. Very poor legal guidance (and, perhaps, wishful thinking) have apparently led school officials to believe that text — as opposed to email — communications are not public records and therefore cannot be accessed through an open records request.
(Watch the Pollio deposition!)
In Kentucky Open Government Coalition v. Kentucky Department of Fish & Wildlife Resources Commission (Ky. App. Oct. 27, 2023), Judge Bellows observed, “The Kentucky Court of Appeals stated, ‘Based on our review of applicable law, we are of the opinion that text 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.’ This applies to this case because Dr. Pollio, other members of the JCPS staff, and the JCPS board chose to use their personal cellphones to conduct JCPS business. Dr. Pollio and Linda Duncan stated in their depositions that they use their personal cellphones when conducting JCPS business.
“Ultimately, JCPS is required to provide these records because the cellphones are being used to conduct JCPS business.”
In a familiar refrain, Ryan concludes his report with this, “[T]he district is reviewing the decision and expects to appeal.”
In the same week, LPM’s Jess Clark exposed another deceptive practice employed by JCPS in her examination of the sources of funding for the “Farewell note to former JCPS superintendent sparks board inquiry.” Her story focused on JCPS’s valentine to Pollio — a billboard which “loomed over I-65 south in downtown Louisville” for several weeks and came at a cost to the district of $6,950 in donated funds.
This excerpt from Clark’s story is illustrative of the highly questionable practice:
“In the course of KyCIR’s inquiry into the billboard, JCPS initially failed to produce financial records, claiming they did not exist.
“[W]hen KyCIR asked in mid-June for all ‘contracts, invoices, and receipts’ relating to the billboard, JCPS initially produced just one document — an $800 invoice for design costs.
“When KyCIR followed up to note that there should be documentation relating to the installation and renting of the billboard itself, a JCPS attorney wrote back: ‘We do not have any additional documentation or invoices at this time.’
“After several additional follow-ups, [JCPS Chief Communications Officer Carolyn] Callahan told KyCIR the billboard cost was $6,950, but would not provide documentation, saying the invoice would be available after the run of the billboard.
“Another records request for Callahan’s emails revealed she received the $6,950 contract with OutFront Media by email in April, and had failed to produce it in response to KyCIR’s first request.
“Callahan said she didn’t see the document when she combed through her records.
“‘I think that was just totally a miss — didn’t see it,’ Callahan told KyCIR. ‘Nothing on purpose.’”
It’s a dodge familiar to many open records requesters:
- Deny the existence of responsive records — having conducted little to no search — hoping the discouraged requester abandons the effort;
- If pressed, release on a piecemeal basis records uncovered in a cursory search;
- And, if the requester persists, and all else fails, conduct the adequate search which the open records law requires an agency to conduct in the first place.
It’s sometimes referred to as “Delay, delay, and hope they go away.”
The Cabinet for Health and Family Services used it in equivocating about child fatality records; the University of Kentucky used it in responding to The Kernel’s request for investigative records generated in response to sexual harassment complaints leveled against a named professor; and the Shively Police Department used it in responding, within 36 minutes, to the Courier Journal’s request for records related to a 2020 hot pursuit incident that culminated in the deaths of three bystanders (including an infant).
As recently as May, 2025, the Kentucky Attorney General invoked the old standard: “An adequate search for records is one using methods reasonably designed to find responsive records. See, e.g., 95-ORD-096. Reasonable search methods include reviewing the files pertaining to the general subject matter of the request, and the files of employees either specifically mentioned in the request or whose job duties are related to the subject matter of the request.”
Surely, an adequate search conducted by JCPS upon receipt of LPM’s request for records relating to a single billboard that graced the interstate for a brief time — and that was apparently the brainchild of a single JCPS staff member, or no more than a handful of JCPS staff — would have yielded all responsive records in existence at that time.
It’s nothing short of absurd when a requester must suggest what kinds of records the agency should maintain and locate that are responsive to an open records request.
Neither “not on purpose” nor “a miss” is an acceptable justification for a public that reasonably expects an adequate search for records responsive to open records requests upon submission of that request. An apparently uninformed agency attorney’s casual dismissal of a follow-up inquiry is beyond the pale — suggesting dereliction of duty or, worse still, complicity.
Hiding behind these deceptive practices as a matter of spoken (“texts are not subject to the open records law”) or unspoken (keep requesters waiting) agency policy is an affront to the public’s trust and offends the public good. Keep a watchful eye out for them.
How often do these deceptive practices deprive the public of its statutory right to know?
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