The Kentucky Supreme Court's recent decision to allow public officials to shield government business conducted on personal devices from public disclosure has sparked alarm among transparency advocates who warn the ruling could undermine decades of open records protections in the state. The Kentucky Center for Investigative Reporting examined the implications of the 4-2 ruling, which stemmed from a 2021 lawsuit filed by the Kentucky Open Government Coalition.

The case centered on whether communications about public business conducted on commissioners' personal email accounts and cell phones must be disclosed under the state's Open Records Act. In its April decision, the court ruled that individual commission members do not qualify as "public agencies" under state law, and therefore records in their personal possession need not be disclosed, even when they relate to official duties.

Justice Kelly Thompson wrote the majority opinion, arguing that commissioners are volunteers appointed by the governor, not officers of the commonwealth, and therefore the Open Records Act does not apply to them individually. The Kentucky Open Government Coalition, a transparency advocacy nonprofit, challenged this reasoning during the legal battle that began after the Kentucky Department of Fish and Wildlife Resources refused to turn over communications from commissioners' private devices.

Critics say the decision invites public officials to deliberately use personal devices to avoid public scrutiny. Amye Bensenhaver, co-director of the Kentucky Open Government Coalition, called the decision "the darkest hour for open records," arguing it is "so full of loopholes and traps that basically will be exploited by public agencies to undermine what remains of our open records law."

First Amendment attorney Mike Abate, who argued the case for the coalition before the Supreme Court, expressed concern that officials can now easily switch between official and personal communications channels to evade disclosure requirements. "Most of these officials, if they pull out their phone to communicate, could easily click on one app to send an email on a server run by the agency, or click on another app to text about it and take it through a completely offline channel," Abate explained.

The dissenting justices, including Justice Shea Nickell, warned that the ruling would "eviscerate" the public's right to know what government is doing. Nickell argued that "a categorical exclusion of text messages found on personal cellphones" would encourage public officials to utilize personal devices to place public records beyond public reach.

Thompson suggested that the legislature could address the issue by amending the Open Records Act, issuing state-owned devices to officials, or making other policy changes. He also indicated that citizens could pursue civil lawsuits if they believe an agency is intentionally circumventing the transparency law through the use of private devices.

The case marks a significant setback for Kentucky's Open Records Act, which has protected public access to government documents since 1976.