The Kentucky Open Government Coalition received notification from the Supreme Court Clerk on November 22 that the Kentucky Department of Fish and Wildlife Resources Commission has filed a petition for Supreme Court discretionary review of the October 27 opinion of the Court of Appeals in favor of the Kentucky Open Government Coalition and the public's right to know.
And, it seems, the Commission reached the decision to petition the Supreme Court for review of the Court of Appeals' opinion in a nonpublic meeting which a May 2023 Cameron open meetings decision -- with which we strenuously disagree -- permits.
https://kyopengov.org/blog/kentucky-open-government-coalitions-win-open…
In late October, the Court of Appeals ruled that electronic 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." They are accessible to the public, like any other public record, "absent an applicable exception"
http://opinions.kycourts.net/COA/2022-CA-000170.PDF
https://kyopengov.org/blog/kentucky-open-government-coalitions-win-open…
In a published opinion, the court rejected the Fish and Wildlife Commission's position -- which the Commission based on a 2021 open records decision issued by Kentucky Attorney General Daniel Cameron -- that the term "public record" applies only to those records in the public agency's physical possession.
https://www.ag.ky.gov/Resources/orom/2021/21-ORD-127.pdf
The court astutely observed, "To hold otherwise would certainly defeat the underlying purpose of the Open Records Act as public officials could easily evade disclosure of public records by simply utilizing their personal cell phones."
Court rules permitted the Fish and Wildlife Commission 30 days to petition the Supreme Court for discretionary review of the October 27 opinion of the Court of Appeals.
A publicly noticed November 8 special meeting of the Fish and Wildlife Commission to receive a closed session "update on the Court of Appeals decision on open records litigation," "discuss[ ] options," and "vote on next step[s] in litigation" was canceled. In the cancellation announcement the Commission indicated that the Department of Fish and Wildlife Resources would "provide notice about the rescheduled meeting date in accordance with the Kentucky Open Meetings Act."
The Commission scheduled no subsequent public meetings, but arrived at a collective decision -- sometime between November 9 and November 22 -- to petition the Supreme Court for discretionary review of the appellate court's opinion.
Could it be that the nine member Fish and Wildlife Commission relied on an unappealed May 2023 open meetings decision issued by Cameron's office to reach a final decision without public oversight? The decision-- 23-OMD 112 -- declares that if a quorum of the members of a public agency reach a decision "through email, then it is not clear how that could constitute a violation because the word ‘meeting’ as defined under KRS 61.805(1) does not include written communications.”
https://www.ag.ky.gov/Resources/orom/2023-OROM/2023/23-OMD-112.pdf
https://kyopengov.org/blog/cameron-declares-open-meetings-law-does-not-…
The May 23 decision echoed an earlier decision declaring that "a discussion of public business by ‘written communications, such as emails,’ between a quorum of the members of a public agency is not subject to the open meetings law because “that interpretation lacks textual support from the Act. It also lacks any basis in what the word ‘meeting’ means.”
https://www.ag.ky.gov/Resources/orom/2023-OROM/2023/23-OMD-103.pdf
Cameron dismissed past attorneys general open meetings decisions finding "'no appreciable difference between non-public telephone meetings and non-public email meetings,’ 14-OMD-015," suggesting that "there is a glaring distinction between agency telephone calls and agency emails. Specifically, agency-owned emails are ‘public records’ within the meaning of KRS 61.870(2) and are therefore subject to public inspection, unless an exception under KRS 61.878(1) applies. Telephone calls that are not recorded cannot be subject to inspection because the oral communication has not been reduced to a writing or other record. In other words, the General Assembly has enacted an entire statutory framework—the Open Records Act—to provide for public inspection of an agency’s written communications. The Open Records Act should not be conflated with the Open Meetings Act, as the two Acts are entirely distinct and carry different statutory rights, agency obligations, and remedies.”
"Good luck getting those emails and texts under the open records law," as construed by Cameron's office, the Kentucky Open Government Coalition noted at the time.
Is it possible that the Fish and Wildlife Commission compounded its insult to open government by deciding through email -- rather than at the conclusion of a closed session conducted during a publicly announced special meeting -- to petition the Kentucky Supreme Court for discretionary review of the Court of Appeals' opinion vindicating the public's right to know?
Since the November 8 meeting was not rescheduled, and since there is no other plausible explanation for today's action, we suspect the answer is "yes." Having already demonstrated contempt for Kentucky's open records law, the Fish and Wildlife Commission has now demonstrated contempt for Kentucky's open meetings law.
With today's petition, the Kentucky Department for Fish and Wildlife Resources Commission reaffirms its commitment to defending secret government at the public's expense and its overarching right to know.
