This email from the Kentucky Department for Libraries and Archives to members of the Library, Archives, and Records Commission and the Archives and Records Advisory Committee confirms that KDLA will continue to train public officials and employees that communications relating to public business on their private devices must be managed and retained as public records based on their content.

A communication transmitted to a recipient by email or text is a public record just as a communication transmitted by inter-office or intra-office envelope is. The email or text messaging system—whether public or private—is equivalent to the old familiar envelope. It is the content that is determinative of it retention period under records management laws as well as its accessibility under the open records law.

While we appreciate KDLA's affirmative statement in support of longstanding policy, practice, and law, the Coalition expressed concern about one phrase that appeared in the email.

In a message to KDLA, we objected to inclusion of the phrase "unless otherwise advised by their attorney." As we explained, an agency attorney's advice does not supersede the authority vested in KDLA and promulgated into state regulation.

"We wrote:

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""While [we are] grateful for this endorsement of well-established practice and policy at the Kentucky Department for Libraries and Archives, this phrase — 'unless otherwise advised by their attorney'— concerns [us].

"The Libraries, Archives, and Records Commission is statutorily vested with the 'authority to review and approve schedules for retention and destruction of records submitted by state and local agencies.' This authority extends to all public records — 'regardless of physical form or characteristics.'

"The commission has never, to [our] knowledge, ceded this authority to agency counsel. In some instances, agency counsel is swayed by non-records keeping considerations to offer guidance that is contrary to widely recognized 'best practice' and retention requirements establish by state regulation.

"[We] urge the Kentucky Department for Libraries and Archives to delete this 'disclaimer' before formally issuing this statement or to reissue the statement with this language deleted.

"[We are] grateful for the Kentucky Department for Libraries and Archives' commitment to preserving and maintaining public records. With this small amendment to KDLA's statement, the Coalition will wholeheartedly support it."