At the conclusion of August 29's Court of Appeals oral argument in Kentucky Open Government Coalition v Kentucky Department of Fish and Wildlife Management  Commission, Coalition attorneys, members, and supporters exited the courtroom confident that the appellate panel fully grasps the "existential threat to the Open Records Act" represented by the Fish and Wildlife Commission's position. 

And now we wait on the court to rule. How it will rule is anyone's guess. 

The Commission's flawed position is premised on an exceedingly narrow definition of the term "public record" first espoused by the attorney general. It was in 2021 that Daniel Cameron blithely turned his back on decades of governing interpretation of the term "public record" in a radical departure that -- the Coalition's attorneys astutely observed -- ignores the plain text of the open records law by requiring physical possession of the record, encourages "mischief," and "invites abuse."

https://www.ag.ky.gov/Resources/orom/2021/21-ORD-127.pdf

https://kyopengov.org/blog/kentucky-open-government-coalition-appeals-c…

Presiding Judge Jeff S. Taylor, and associate Judges Sara W. Combs and J. Christopher McNeill, listened intently as Coalition attorneys Michael Abate and Rick Adams, and Commission attorney Jan Michelle West argued their clients' competing positions on the central question: Is agency possession of a record relating to agency business a prerequisite to a determination that it is a public record subject to the open records law? 

The judges peppered attorneys for the Coalition and the Commission with  questions aimed at, among other things, verifying the scope of the Coalition's request for records; segregating private from public electronic communications on a single device/account; and exploring the methodology for search, retrieval, and production of the public records on private devices and accounts. 

THE FRANKLIN CIRCUIT COURT's 2022 OPINION

The Franklin Circuit Court handed each of the parties a partial "victory" in its 2022 opinion. The court rejected the Commission's (and attorney general's) "possession only" interpretation of the term "public record," concluding that electronic communications exchanged by public officials and employees on private devices and accounts are public records, subject to the open records law. 

Unfortunately, however, the circuit court muddied the waters by differentiating emails from texts, concluding that production of the later constituted an unreasonable burden. The court did so without the statutorily required clear and convincing evidence of the actual burden, if any, the Coalition's open records request imposed. In essence, the court established a categorical carve out for texts communications -- in every sense, the functionally equivalent of email communications -- on shaky grounds and with no evidence of an unreasonable burden beyond the Commission's vague and unsubstantiated allegations. 

In other words, the circuit court ruling left the door open for public agency avoidance of public oversight through the use of text, rather than email, to covertly conduct the public's business.

https://dcogc.org/wp-content/uploads/2022/03/Kentucky-opinion-on-text-m…

https://amp.kentucky.com/news/politics-government/article257710593.html

THE COALITION'S ARGUMENT

Abate commenced his argument by noting the ubiquitousness of the use of electronic devices to conduct public agency business, the absurdity of conditioning public access to the records of that public business on the place where the record is stored, and the  "existential" threat to open government such a narrow, and textually unsupportable, the Commission's position poses.

He easily rebutted the "burdensomeness" claim on which the circuit court ruling turned. 

Burdensomeness, Abate noted, must be established by clear and convincing evidence by the agency. The Commission vaguely referenced that "burden" in a global/enterprise-wide sense, but made no effort to establish an unreasonable burden on the specific facts of this case -- as the law clearly requires at KRS 61.872(6) and the Commonwealth's highest Court has vigorously reaffirmed. 

https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=51391 (see subsection (6))

https://caselaw.findlaw.com/court/ky-supreme-court/1387319.html

He deftly moved to the central legal dispute: whether the Commission's (and the Attorney General's) non-textual, and exceedingly narrow reading of "public record" holds water. 

The "text of the [open records] law is the lodestar," Abate emphasized. The open records law defines "public record" as "all books, papers, maps, photographs, cards, tapes, discs, diskettes, recordings, software, or other documentation regardless of physical form or characteristics, which are prepared, owned, used, in the possession of or retained by a public agency." This "prescient" definition, he explained, was enacted in 1976 and clearly encompasses electronic communications on public officials' and public employees' both public and private accounts and devices that relates to public agency business and that are "prepared, owned, used in the possession of, •or• retained by a public agency."

https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=51390

Abate reiterated that surrender of a private cellphone has never been the Kentucky Open Government Coalition's expectation -- much less its desire. He described the agency inquiry/ search/retrieval/review/ and production process mandated in processing every open records request, noting that the price a public official or employee must pay for the use of their private device or account is that they are required to search their electronic communications for all responsive records.

COMMISSION'S ARGUMENT

In what may have been the most awkward moment of Tuesday's oral argument, Commission counsel seized on a second sentence in the definition of "public record" which states, "'Public record' shall not include any records owned or maintained by or for a body referred to in subsection (1)(h) of this section that are not related to functions, activities, programs, or operations funded by state or local authority" as a limitation on the Commission's (and the circuit court's) broad definition of "public records." Unfortunately, she failed to note that the limiting language applies in only one legal context: when the records are owned or maintained by or for a "body referred to in subsection (1)(h) of this section," that is, a "body which, within any fiscal year, derives at least twenty-five percent (25%) of its funds expended by it in the Commonwealth of Kentucky from state or local authority funds."

The Fish and Wildlife Commission is not a public agency by virtue of KRS 61.870(1)(h), but by virtue of the fact that it is "a state government. . .commission" (KRS 61.870(1)(b)); a state agency "created by or pursuant to state or local statute, executive order, ordinance, resolution, or other legislative act" (KRS 61.870(1)(f)); and an "entity where the majority of its governing body is appointed by a public agency as defined in paragraph (a), (b), (c), (d), (e), (f), (g), (h), (j), or (k) of this subsection; by a member or employee of such a public agency; or by any combination thereof." KRS 61.870(1)(i)).

https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=51390 (see subsection (1))

Commission counsel's novel argument is a nonstarter. 

In her argument in chief, Commission counsel West once again hammered on the "volunteer" status commissioners occupy, suggesting that it is a legally significant/lesser status that should allow them to evade public oversight through their public records. She emphasized the burdensome nature of requiring them to weed through their electronic communications to identify and produce. those dealing with Commission business.

The Commission seemed to labor under the erroneous impression that a record is not a public records unless it is a nonexempt/open record. West repeatedly focused on the fact that responsive records were constituent communications and/or preliminary and therefore not available to the public. 

Exempt or nonexempt, the records are public records for open records purposes. This is the elemental premise from which disputes as to accessibility, or reasonable copying fees, or even unreasonable burden may flow, but the Commission proceeds from a fundamental misunderstanding of the open records law.

REBUTTAL

In rebuttal, Coalition counsel Abate returned the discussion to the central issue in the case: what the Coalition requested, the Commission's non-denial denial, and the overarching obligation of public agencies, officials, and employees  under the open records law, regardless of where a record is stored. 

Drawing an analogy to school board volunteer members, Abate reminded the court that -- volunteers though they may be -- they are responsible for establishing important public policy and must be held to the same standard of public accountability regardless of where their records are stored. 

Any lesser standard represents, as Abate underscored,an existential threat to the Kentucky Open Records Act.