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Commission’s Motion to Transfer
Commission’s arguments in support of transfer

The Department of Fish and Wildlife Resources Commission on February 21 filed a motion to transfer the appeal/cross-appeal in Kentucky Open Government Coalition v Department of Fish and Wildlife Resources Commission from the Court of Appeals to the Supreme Court, characterizing the case as one “of great and immediate public importance.”

The underlying open records case originated in the Commission’s August 2021 partial denial of the coalition‘s request for emails and text messages exchanged by named officials over a discrete period of several months. The request included “all responsive public records which were generated on private cell phones, on private email services, or through other private communication channels” but expressly excluded “[c]ommunications of a purely personal nature unrelated to any government function” and therefore exempt from public inspection under KRS 61.878(1)(r).

On January 25, the Franklin Circuit Court Court determined that the requested records are in fact public records under the Act and granted KOCG’s motion as it relates to public records stored in private email accounts. It ordered the Commission to obtain any emails from the Commissioner’s personal email accounts and either produce the records or identify specific exemptions justifying the withholding of each withheld record. 

However, the Court denied KOCG’s motion as it relates to public records stored on private devices pursuant to KRS 61.872(6) because it would place an undue burden on the Commission to produce the requested records.

The Coalition appealed the circuit court opinion — as it relates to public records stored on private devices — to the Kentucky Court of Appeals on February 11. The Commission cross-appealed on February 18.

The civil rule under which the Commission’s February 21 motion for transfer was filed, CR 74.02, authorizes the Supreme Court to grant a motion to transfer a case from the Court of Appeals “only upon a showing that the case is of great and immediate public importance.”…)

The Coalition agrees with the Commission that the issue presented in this case is of great importance. We disagree in every other particular with the arguments advanced by the Commission in support of its underlying position.



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