On December 13, attorneys Michael Abate and Rick Adams filed the Combined Appellee Response Brief and Cross-Appellant Brief on behalf of the Kentucky Open Government Coalition in Kentucky Department of Fish and Wildlife Resources Commission v. Kentucky Open Government Coalition. The brief was filed in the Kentucky Supreme Court -- the last step in the litigation before the Court schedules oral arguments and decides the issue: Can a public official or employee avoid the Open Records Act simply by using a non-governmental email account, device, or app to communicate about the public’s business?
The brief and cross-brief's 40 pages confirm the gravity of that issue to the future of open records, as well as open meetings, in Kentucky.
HOW DID WE GET HERE?
The Coalition brief describes the events leading up to Kentucky Supreme Court review:
"The Kentucky Open Government Coalition ('KOGC') sought records Kentucky Department of Fish and Wildlife Commission ('Commission') that were prepared and used by Commissioners to conduct public business, including records that happen to be stored on individual Commissioners’ personal email accounts and electronic devices. The Commission refused to produce these records.
"The Franklin Circuit Court held that all records used to conduct public business are public records under the Open Records Act, regardless of where they are stored. It ordered the Commission to ask Commissioners to collect any emails sent or received on their personal accounts and submit them for review. In contrast, however, the Court held that asking Commissioners to collect and submit text messages they sent about agency business on personal cell phones was too burdensome as a matter of law, in all cases.
"The Court of Appeals reversed, in part. It affirmed the holding that records used and prepared by public agencies are public records, regardless of where they are stored. But it vacated the holding that asking Commissioners to turn over text messages related to public business for agency review is always an unreasonable burden as a matter of law. It remanded the case for further proceedings."
WHAT ARE THE COALITION'S ARGUMENTS?
Central to the Coalition's chief argument is the decades-old recognition that records sent or received by the Commissioners regarding their roles as Commissioners are public records--regardless of where they are stored. It is directly at odds with the "a-textual" possession-based definition argued by the Commission.
Our position is supported by:
• the plain text of the law;
• recent failed legislative attempts to revise the open records, successfully opposed by organizations and individuals of all political stripes, that confirm the law's original intent;
• a preponderance of state and federal jurisdictions that grant the public access to records stored on personal devices and accounts under laws like Kentucky's; and
• the non-binding nature of the Attorney General's open records decisions, on which the Commission relies, that depart from long-standing precedent of the Attorney General's office.
The Franklin Circuit Court and the Kentucky Kentucky Court of Appeals agreed with the Coalition, holding that a record’s public status is determined by its content and use, not its physical location. In other words, "The Act’s 'unambiguous definition' means what it says: 'a public record may be prepared by or used by a public agency but not necessarily in the possession of a public agency.” Any record “used or prepared by an agency fall[s] within the scope of the Open Records Act regardless of where the record is stored. A possession-only approach does not comport with the plain language of KRS 61.870(2)."
https://apps.legislature.ky.gov/law/statutes//statute.aspx?id=54794
The Court of Appeals expressly declined to adopt the Commission’s possession-only approach to public records because it “would certainly defeat the underlying purpose of the Open Records Act as public officials could easily evade disclosure of public records simply by utilizing their personal cell phones."
https://caselaw.findlaw.com/court/ky-court-of-appeals/115372886.html
Through counsel, the Coalition asserts that "preemptively declaring certain channels of communication off-limits to the public will only embolden public employees and officials to hide their communications from the public.
"This is not a hypothetical concern. It was recently reported, for example, that the Louisville Police Department’s leadership used an encrypted chat application that was set to automatically delete their messages within a short period of time, contrary to the preservation requirements of state law.
"Such tactics would become commonplace if only official government memoranda and emails were subject to the Act" based on a possession-based legal analysis.
The (un?)intended consequences are becoming increasingly apparent. In a recent open records decision, the Attorney General affirmed the denial of a request for public agency voicemail managed and maintained for the agency by a private offsite vendor. "An agency does not violate the Act by denying a request for records in the possession of its vendor. See 24-ORD-153 (finding records in the possession of the agency’s consulting firm “do not fit the definition of ‘public records’”).
https://www.ag.ky.gov/Resources/orom/2024-OROM/2024/24-ORD-153.pdf
https://www.ag.ky.gov/Resources/orom/2024-OROM/2024/24-ORD-262.pdf
WHAT LIES AHEAD FOR OPEN GOVERNMENT IN KENTUCKY UNLESS THE SUPREME COURT AFFIRMS THE COURT OF APPEALS?
Carried to its the logical exclusion, the Commission's position will have grievous consequences if adopted.
Under the Commission's a-textual "possession based" definition, financial records maintained for a public agency by a bank; a city contract maintained by a contract attorney in his private office; and even public agency records maintained by public employees, but stored in personal file cabinets in their homes, are arguably not public records because they do not reside in the agency's physical possession.
If these secretive practices go unchallenged, and become normalized, public officials and employees -- and the lawmakers who endorse their views -- drain the lifeblood out of the open records law.
"But his emails? Team Trump’s private emails spark concerns"
https://t.co/mwPEJrRsFO
Here's a thought for those contemplating public service. Do not seek -- and if hired, appointed, or elected -- do not accept, public office or appointment without first understanding and embracing that public office's corresponding statutory duties, including those assigned by Kentucky's open government laws.
Candidates for public service who are incapable of understanding that they serve the public, and are accountable to the public, are wholly unsuitable for public office or employment.
