The headline reads": KY man used his state-government email in illegal Viagra scheme.
The question is: Is this the type of communication that Senator Damon Thayer had in mind when, in 2018, he championed legislation adding a new exception to the open records law for "Communications of a purely personal nature unrelated to any governmental function?"
https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=48230
Or is it the type of communication that Attorney General Daniel Cameron had in mind earlier this year when he rejected, without reversing, past open records decisions issued by the OAG that had limited the availability of the existing exception to the open records law for "correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency?"
https://ag.ky.gov/Priorities/Government-Transparency/orom/2020/20-ORD-0…
The problem is: Unintended consequences.
As elected officials, in their haste to advance their apparent personal agendas, rush headlong into substantial modifications to existing open government laws, do they ever ask *themselves*:
What are the implications of these modifications for future interpretation and application of the open records law?
Thayer's failed 2018 attempt to redefine the term "public record" in the law to exclude "emails, texts or calls on devices paid for entirely with private funds and which do not involve government email accounts" would have openly promoted secrecy in government by enabling public officials to discuss public business on private devices without public accountability and transparency.
Thayer revised the amendment — after it met with nearly universal opposition — in a face saving but nearly as absurd measure. He secured passage of a measure that, I wrote at the time, "creates a new problem through its use of over-inclusive language.
The amendment extends to any 'communications of a purely personal nature unrelated to any governmental function' and not just those transmitted on private devices. It arguably shields from disclosure communications by public officials and employees about matters of a personal nature — *such as a part-time private business* or an inappropriate relationship with a coworker— on publicly issued devices."
https://www.courier-journal.com/story/opinion/columnists/2018/04/02/ken…
And so it was when, in July, Cameron issued 20-ORD-095.
The decision arose from a request by Perry Boxx, WPSD Local 6 News Director, to Marshall County Judge/Executive Kevin Neal for public records, including "email[s] and text messages between Marshall County officials and Lance Cary."
Cary had been active in the local Second Amendment Sanctuary County movement and identified himself as Neal's "volunteer assistant, campaign manager, and close friend" as well as his "executive assistant."
Neal disputed Cary's status as his "executive assistant" and invoked KRS 61.878(1)(i) in denying the request, asserting that any such records constituted protected "correspondence with private individuals other than correspondence intended to give notice of final agency action."
Cameron affirmed Neal's denial, concluding that all responsive records were correspondence with a private individual.
In a thinly veiled criticism of past administrations, Cameron wrote:
"This Office has previously imposed additional requirements on a public agency's reliance on this exemption.
"Those requirements are not supported by the plain text of KRS 61.878(1)(i). The Act does not only exempt correspondence with a private individual who requests confidentiality or only that correspondence in which the private individual does not 'petition' the agency; rather, it exempts 'correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency.'KRS 61.878(1)(i).
"Although it is true that the Act's exemptions must be narrowly construed to achieve the public policy of free examination of public records, KRS 61.871, that does not mean this Office can add words to the statutory text. [Citation omitted.] And it can't eliminate them either. [Citation omitted]. Here, the addition of requirements not found in the text would operate to eliminate an exemption the General Assembly crafted. We decline to do so."
Cameron was correct about one thing. Past attorneys general recognized that reasonable restrictions on the exception were necessary to avoid absurd outcomes.
The Coalition wrote:
"A letter from a private individual addressed to an official offering him or her a bribe (or from the official soliciting a bribe) in exchange for a particular action or outcome; a death threat to a public official from a private individual; extortion; lobbyists' letters; even a letter from a private contractor to a public agency relating to implementation of the contract — all would arguably be inaccessible to the public under your self-serving and short-sighted interpretation of the law."
https://www.facebook.com/419650175248377/posts/716187632261295/?d=n
Add to that list *a public employee — using public equipment on public time — to correspond with a private individual(s) relating to the public employee's part-time private business selling Viagra.*
This is not beyond the realm of possibility in a Cameron administration unapologetically dismissive of past interpretation of the open records law.
And the headline that appeared in the Lexington Herald-Leader?
Just another reminder that these are grim times for Kentucky's open government laws.
