The Kentucky Supreme Court on June 5, 2024, granted the Kentucky Department of Fish and Wildlife Resources Commission's motion for review of the decision of the Court of Appeals in Kentucky Open Government Coalition v Kentucky Department of Fish and Wildlife Resources Commission.

The Court established a briefing schedule in its order and will hear oral arguments in the case.

In October, 2023, the Kentucky Court of Appeals ruled that electronic communications "stored on personal cell phones are public records when such messages are prepared by or used by the members of the Commission and relate to or concern Commission business. To hold otherwise would certainly defeat the underlying purpose of the Open Records Act as public officials could easily evade disclosure of public records by simply utilizing their personal cell phones."

https://caselaw.findlaw.com/court/ky-court-of-appeals/115372886.html

In a concurring opinion, Judge J. Christopher McNeill wrote:

"to assuage any concerns the Kentucky Open Records Act requires public agencies to turn over private cell phones or that today's holding will impose an extreme burden on agencies to identify and produce all public records generated on private cell phones or private email accounts. Our Opinion merely holds that 'text messages [or emails] related to Commission business and stored on personal cell phones [or personal email accounts] of its members are public records generally subject to disclosure under the Open Records Act absent an applicable exception.'

"Thus, only those public records not covered by an exemption would be subject to disclosure."

The Court of Appeals thus clearly repudiated the arguments advanced by the Commission, and later parroted by the General Assembly in 2024's House Bill 509, that the open records law requires public officials and employees to surrender personal cellphones to fulfill open records requests and also requires indiscriminate production of "text messages [or emails] related to Commission business and stored on personal cell phones [or personal email accounts]."

https://apps.legislature.ky.gov/record/24rs/hb509.html

Only those emails and texts relating to public agency business and stored on private devices and accounts that are "not covered by an exemption would be subject to disclosure."
 
House Bill 509 did not become law, but the bill's sponsors have indicated that they intend to introduce a bill addressing the issue in the next session.

https://kyopengov.org/blog/hb-509-sponsor-remains-determined-secure-pas…