Kentucky Supreme Court limits public records access on private devices

LEXINGTON, Ky. — The Kentucky Supreme Court ruled Thursday that public officials can shield text messages and emails on private devices from public records requests, striking down transparency advocates' hopes for greater government accountability.

The 4-2 decision centered on a years-long case brought by the Kentucky Open Government Coalition seeking texts and emails from members of the Kentucky Department of Fish and Wildlife Commission. The coalition's 2021 open records request targeted communications about official business, but the Fish and Wildlife Commission denied access to messages on commissioners' personal phones, arguing they were not public records.

Justice Kelly Thompson's majority opinion held that individual board members do not constitute a "public agency" under Kentucky's Open Records Act, and therefore personal communications cannot be required for disclosure. "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," Thompson wrote.

The ruling reversed a Kentucky Court of Appeals decision that had sided with the coalition, ruling that messages on personal devices constitute public records when created for government business. The lower court had found the appeals court's logic sound: allowing officials to shield such communications would enable them to evade the spirit of the state's transparency law.

Amye Bensenhaver, co-director of the Kentucky Open Government Coalition, called the decision a severe setback. "It's so full of loopholes and traps that basically will be exploited by public agencies to undermine what remains of our open records law," she said.

Dissenting Justice Shea Nickell warned the majority's ruling would "eviscerate the public's right to know what its government is doing." He argued that allowing agencies to have members conduct business on private channels would create an end run around the Open Records Act.

Thompson suggested two potential remedies: public agencies could provide state-issued devices and email addresses to prevent the problem, or the Kentucky General Assembly could amend the Open Records Act to clarify individual board members' obligations. "It is our legislative branch's responsibility to make such decisions, and we will not engage in legislating from the bench," Thompson wrote.

Attorney Michael Abate, representing the coalition, disputed the practicality of Thompson's suggestion. "It's very hard to get if you can't get the records in the first place," he said of pursuing civil lawsuits to challenge potential abuse.

The Department of Fish and Wildlife Resources released a statement saying it "takes its open records obligations seriously and has always worked to respond to requests promptly and in good faith."