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Coalition’s pre-hearing statement
Coalition’s notice of appeal

On February 11, the Kentucky Open Government Coalition appealed the Franklin Circuit Court’s opinion and order in Kentucky Open Government Coalition v. Kentucky Department of Fish and Wildlife Commission to the Kentucky Court of Appeals.

The coalition is represented in the open records appeal by Jon Fleischaker, Michael Abate, and Rick Adams, attorneys in the Louisville law firm Kaplan, Johnson, Abate, & Bird LLP.

The records access dispute 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).

The Commission ultimately made clear that it would not produce any responsive emails or text messages on Commissioners’ personal devices or private email accounts, arguing that it cannot produce records that it claims it does not “possess,” and that documents stored on privately-owned devices are not “public records” under the Open Records Act. 

In its September 2021 circuit court complaint, the coalition asserted that the case poses “a question of exceptional importance under the Open Records Act: are records sent or received by a public official, pertaining to public business, exempt from disclosure simply because they were sent or received on a privately owned device or email account?”…

From the complaint:

“The Defendant in this case, the Kentucky Department of Fish and Wildlife Commission, insists that is the law. Alarmingly, Kentucky’s current Attorney General agrees. See, e.g., 21-ORD-127. This interpretation violates the plain text of the Open Records Act and decades of practice across the Commonwealth. 

“If affirmed by this Court, the Commission’s interpretation will gut the Open Records Act and provide a roadmap for public officials to shield all manner of things from the citizens they serve.”

At the time of filing, Abate characterized the Commission’s position as “a radical departure from what the law has been,” noting that it “willfully ignores the fact that the General Assembly rejected the very exemption the Attorney General is now attempting to create. We are confident that the courts will reject this attempt to gut the Open Records law from the inside.”

In January, 2022, the circuit court ruled that emails and text messages stored on the Department of Fish & Wildlife commissioners’ private devices — relating to public business and therefore responsive to the coalition’s open records request — were public records subject to the open records law. The court ordered the Commission to disclose responsive emails from the Commissioner’s private devices or accounts or identify specific exemptions justifying the withholding of each withheld record.

The court did not require the Commission to produce responsive texts messages because production of the texts would impose an unreasonable burden on the Commission.

In its pre-hearing statement, filed on February 23, the coalition challenges that part of the circuit court’s opinion relating to text messages stored on private devices and email accounts. 

It is the coalition’s position that the circuit court erroneously determined that production of text messages on private devices constitutes an unreasonable burden under 61.872(6). That statute “allows withholding public records due to ‘an unreasonable burden in producing public records’ if that burden is ‘sustained by clear and convincing evidence.’ That burden has not been met here where the Commission has not shown any reason why it cannot retrieve the requested records except its own inadequate record retention procedures.” 

In support, the coalition cites Commonwealth v. Chestnut, 250 S.W.3d 655 (Ky. 2008), a Kentucky Supreme Court opinion recognizing that a public agency “should not be able to rely on any inefficiency in its own internal record keeping system to thwart an otherwise proper records request.”

The coalition also challenges the circuit court’s finding that “the Commission did not act willfully when it refused to acknowledge its obligations to search for public records on the Commissioner’s private devices and accounts despite the plain text of the Open Records Act and decades of open records law establishing that all records used to conduct agency business are public records, regardless of where they are stored.”

The Department of Fish and Wildlife Commission filed a cross appeal on February 18.


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