The Kentucky Supreme Court ruled Thursday that emails and text messages created by public officials on private devices are not public records, a decision that a dissenting supreme court justice fears could destroy “the public’s right to know what its government is doing.”
The ruling stemmed from a years-long case brought by the open government advocacy group Kentucky Open Government Coalition. In an open records request in 2021, the group asked for, and was denied, text and email communications on the private phones of members of the Kentucky Fish and Wildlife Commission, a nine-member board that oversees the Kentucky Department of Fish and Wildlife Resources.
In a majority opinion, Justice Kelly Thompson — joined by Chief Justice Debra Lambert, Justice Angela Bisig, and Deputy Chief Justice Robert Conley — wrote that individual members of the board did not constitute a “public agency” under the state’s Open Records Act, therefore the emails and text messages on their private phones are not public records.
“[W]hen 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,” Thompson wrote.
Thompson also wrote if someone believes a government agency is subverting the open records law by conducting public business on private devices, the person could file a civil lawsuit and see through the discovery process if an agency is subverting the law.
Michael Abate (Kentucky Lantern photo by McKenna Horsley)
Michael Abate, an attorney representing the open government advocacy group had argued in oral arguments before the state’s highest court last year that allowing text messages and emails on private devices to not be subject to disclosure under the state’s open records law would be “the destruction of transparency” in the state with public matters discussed on private devices.
An attorney for the wildlife department had argued governments could be forced to go through thousands of text messages and invade the privacy of public officials, fears that the open government advocacy group argued were overblown. Republican statewide constitutional officers led by Attorney General Russell Coleman, along with the University of Kentucky, had filed amicus briefs before the court in support of the department’s position.
Lisa Jackson, a spokesperson for the Kentucky Department of Fish and Wildlife Resources, in an emailed statement said the department “takes its open records obligations seriously and has always worked to respond to requests promptly and in good faith, as we did throughout this matter.”
“We respect the court’s careful consideration of these important questions of law. The department will continue to comply fully with the Open Records Act,” Jackson said.
A spokesperson for Coleman’s office did not immediately provide responses Thursday afternoon to the Lantern about the ruling.
The Supreme Court ruling reverses an appeals court ruling against the department that had found electronic communications about public business on private devices to still be public records.
Amye Bensenhaver, a co-director of the Kentucky Open Government Coalition, told the Lantern that the majority’s ruling was “so full of loopholes and traps that basically will be exploited by public agencies to undermine what remains of our open records law.”
“It’s going to have a broad ripple effect and it will be devastating to the public’s right to know,” Bensenhaver said.
Abate in a Lantern interview called the idea offered by the state’s highest court — to use civil lawsuits to see if public agencies are subverting the open records law — as “very hard to get if you can’t get the records in the first place.”
He said he “would love” for the state legislature to make clear in state law that the “public’s records are still the public’s records.”
“I don’t think anybody believes…it’s a good idea for us to delegate solely to public officials whether the public has a right to know what they’re doing by giving them carte blanche to choose their methods of communication to avoid public scrutiny,” Abate said.
Bensenhaver praised a dissent by Justice Shea Nickell, joined by Justice Michelle Keller, for having “the courage” to defend the state’s open records law.
Nickell, in his dissenting opinion wrote the ruling from the majority of justices “eviscerates the public’s right to know what its government is doing.”
“A government agency cannot be permitted to allow its servants to generate public records utilizing private communications mediums and subsequently refuse to produce those records upon request under the guise of a lack of control,” Nickell wrote. “If that were the law, government agencies could easily evade their ORA obligations by removing government email addresses or other publicly funded channels of communication, resulting in an end run around the ORA’s basic purpose of ensuring an informed citizenry which can hold its public servants accountable.”
In writing the majority opinion, Thompson said public agencies could change internal practices surrounding government correspondence by giving employees state email addresses and instructing them on how to use those email addresses. Thompson also said the state legislature could change the state’s open records act to declare individual members of a government board to be subject to open records requests.
“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.
Nickell, however, wrote that the majority of justices were in fact “legislating from the bench” by “creating new classes of exempt persons and records which have never before existed” under the state’s open records law.
“I cannot countenance such a result,” Nickell wrote.
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Written by Liam Neimeyer. Cross-posted from the Kentucky Lantern.
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