Attorneys for the Kentucky Open Government Coalition and the Department of Fish and Wildlife Commission presented oral arguments in the Franklin Circuit Court on December 6.
A CASE OF "EXCEPTIONAL IMPORTANCE"
Coalition attorney Michael Abate (pictured below with Rick Adams) described Kentucky Open Government Coalition v Department of Fish and Wildlife Commission as a case of "exceptional importance." It will, he emphasized, determine whether a record relating to public business — and sent, received, or stored on a private device or private account — is, as the Department of Fish and Wildlife Commission argues — exempt from the open records law because it is not "possessed" by a public agency.
In other words, the question before the court is whether public servants can evade public oversight by using their private devices and private accounts to conduct the public's business.
THE COALITION'S PUBLIC RECORDS REQUEST AND THE COMMISSION'S RESPONSE
In August, the Coalition requested "all emails and text messages" that were sent between any 2 or more of the following public officials: Rich Storm, Brian Clark, Karl Clinard, Jeff Eaton, Rep. C. Ed Massey, and Rep. Matthew Koch in a one year period.
The Coalition emphasized that its request was "not limited to communications on government-owned email accounts and cell phones," but included "responsive public records on private cell phones, on private email services, or through other private communication channels."
The Coalition also emphasized that "KRS 61.870(2) provides that records which are prepared or used by a public agency are public records subject to the Open Records Act, equal to those which are 'possessed.'" The Coalition stipulated that — pursuant to KRS 61.878(1)(r) —"[c]ommunications of a purely personal nature unrelated to any governmental function," were exempt "regardless of what kind of device they were sent from or received on" and that it was not entitled to any "purely personal" communications.
https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=51393
The Commission later released responsive emails and text messages accessible on its public email server, but withheld responsive emails and texts accessible only on the named officials' private accounts or devices because they were not in the agency's possession.
THE COALITION'S POSITION: PUBLIC AGENCY POSSESSION OF A RECORD IS NOT A LEGAL IMPERATIVE
Judge Thomas Wingate presided at the December 6 hearing as Abate — a partner in the Louisville law firm Kaplan, Johnson, Abate, and Bird, LLP — asserted that the text of the open records law, a consistent line of open records decisions issued by past attorneys general, caselaw, and the legislative history of the open records law support the Coalition's position.
Abate urged the court to reject Attorney General Daniel Cameron's recent departure from a well-established body of legal authority based on a single 2015 open records decision issued by Attorney General Jack Conway. The 2015 decision narrowly read the term "public record" to require physical possession. It was disavowed by Conway's successor, Attorney General Andy Beshear.
"Public record," Abate emphasized, is defined in the open records law as "documentation regardless of physical form or characteristics, which [is] prepared, owned, used, in the possession of or retained by a public agency."
https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=51390
"Possession" is one of five statutory triggers. Any one of the five qualify a record as a public record.
The Commission's reading of the statute, Abate continued, ignores the fact that records relating to public business that are sent, received, or stored on a public official's or employee's private device or account are "prepared" and "used" by the public agency even if those public records are not in the agency's physical possession.
Abate argued that Cameron's narrow interpretation of "public record" — which turns on physical possession — also ignores the statute's plain text, a substantial number of open records decisions, caselaw, and legislative history. All overwhelmingly recognize that it is the nature and purpose of a record — and not the place where it is kept — that determines its status as a "public record."
Public agency "possession" of the record is not a legal imperative.
For these reasons, Abate urged the court to reverse Cameron's open records decision favoring the Commission.
Judge Wingate had no questions for Abate.
THE COMMISSION'S POSITION: THE BURDEN OF PRODUCING THE REQUESTED RECORDS THAT ARE SENT, RECEIVED, OR STORED ON PRIVATE CELLPHONES IS INSURMOUNTABLE
In contrast, Judge Wingate had several questions for Commission attorney Jan West, a partner in the Prospect office of Goldberg and Simpson.
Agreeing that the legal issue is an important one, and acknowledging the status of the commissioners as volunteers, Judge Wingate questioned why the Department of Fish and Wildlife did not simply issue them a Commission email account — at no cost to the commissioners or the Department — on which to conduct their public duties.
West focused on the fact that the commissioners purchase their own phones, that there is no evidence of their intent to subvert the open records law in the use of those phones, and that the state cannot absorb the expense of furnishing them with public phones and/or the burden of production of the requested records — compounded across state government by 400 boards and commissions — if they are deemed public records.
West lamented the additional burden on the commissioners to segregate their purely private communications from communications related to their public business. She asserted their right of privacy in their private communications.
She offered no explanation for the Department's failure to issue the commissioners public email accounts.
West attempted to distinguish the case on which Cameron's predecessors relied in determining that it is the nature and purpose of the record, not the place where it is kept, that determines its status as a public record.
Notwithstanding the absence of any reference in the statute to expenditure of public funds, it was her position that because the case involved a public agency's contract attorney, public funds were expended in the creation of the records stored in the attorney's office. Not so, West argued, here.
(Note: The statute defining "public record" is silent on the question of expenditure of public funds except as to bodies that are deemed public agencies by virtue of their receipt of at least 25% of their funds from state or local authority funds.)
She disputed the Coalition's reliance on legislative history, characterizing the statute that emerged from 2018 legislative efforts to redefine public record to exclude records on private devices or accounts — KRS 61.878(1)(r) — as an eleventh hour compromise.
(Note: That compromise came about as a result of overwhelming public opposition to lawmakers efforts to drastically redefine the term "public record" to restrict the public's right to know.)
She deflected Judge Wingate's question about how the Commission's current practice differs from the conduct for which Hillary Clinton was vilified by arguing that Clinton's conduct violated federal law.
No such law restricting the use of a private device or account, West maintained, exists in Kentucky.
(Note: West apparently overlooked Kentucky law governing management and retention of public records and establishing the offense of Tampering with a Public Record.)
West urged the court to allow Cameron's open records decision affirming the Fish and Wildlife Commission's partial denial of the Kentucky Open Government Coalition's request to stand.
WHAT'S NEXT
The case has been submitted to the Franklin Circuit Court and the parties await the court's opinion.
