The latest factual wrinkle in the public-nonpublic records debate under consideration by Kentucky’s courts — this one from Nevada — suggests the importance of the legal issue.
The Las Vegas Journal Review reports that attorneys for Clark County Sheriff Joe Lombardo — a candidate for Nevada governor — acknowledge that the sheriff sent emails to his political consultants using a public agency cellphone, but maintain that those records are not public and should not be disclosed.
Due Diligence Group LLC, “which has made more than 60 requests of the department for public records related to Lombardo’s tenure as sheriff,” requested the records on June 10.
Lombardo’s attorneys argue “that there is no law that expressly prohibits Lombardo from ‘de minimus contact with his campaign’ using government time or equipment. And because the emails in question don’t concern the provision of public services, they aren’t public records that need to be disclosed under the law.”
Lombardo’s attorneys reason:
“‘By the very nature of the request, and Due Diligence Group’s own acknowledgment, the records it seeks are limited to Sheriff Lombardo’s run for governor. The email communications do not pertain to other employees or officials in (the department) but are strictly limited to Sheriff Lombardo’s campaign.’
“But attorneys for Due Diligence note that a handful of emails the department did release show that Lombardo wrote to his consultants about a citizen complaint about the fingerprint bureau, as well as the success of a vaccine lottery, matters clearly related to providing public services.
“‘It would thoroughly undermine the purpose of the (public records law’s) central goal of transparency in governmental affairs if the government could claim that records are exempt from disclosure because they involved conduct by governmental officials that violate ethical or legal requirements of persons in that position. And the emails themselves indicate that is precisely what was happening.’”
They reason, “If Sheriff Lombardo failed to keep his public duties and private interests separate when he used government time and resources to confer with his campaign consultants in an attempt to secure an elected, paid position, that in and of itself involves the provision of public services – albeit in an abusive and potentially unlawful manner.”
So where would Kentucky’s attorney general land on this issue? Clearly, these are records “possessed” by a public agency (insofar as they are exchanged on a public cellphone). That is the pre-condition for “public record” status that Daniel Cameron demands (ignoring the expansive definition of the term found in the law).
It is likely he would treat them as public records under Kentucky’s open records law. But given his propensity for drawing oversimplified lines in the sand, he might affirm denial of access under the 2018 exception for “communications of a purely personal nature unrelated to any governmental function.”
This exception was, you may recall, the face-saving “compromise” enacted in 2018 when Sen. Damon Thayer quietly attempted to “clarify” the definition of “public records” found at KRS 61.870(2) to exclude public officials’ and employees’ communications (even those concerning public business) on privately own devices.
Kentucky law permits the attorney general to conduct a confidential review of disputed records “for substantiation” of the agency’s denial, but the current attorney general seems to have less enthusiasm for using this authority than most of his predecessors.
It appears that the Nevada case involves a publicly issued device on which at least some email with the sheriff’s political consultants pertains to public issues.
At a minimum, the Kentucky attorney general would — under normal circumstances — be expected to exercise his statutory authority to determine which communications on the publicly issued device were of a “purely personal” nature by reviewing them “in camera.”
Perhaps he might even surprise us all by demanding accountability, declaring that the failure to “keep public duties and private interests separate when using government time and resources to confer with campaign consultants in an attempt to secure an elected, paid position, in and of itself, involves the provision of public services – albeit in an op abusive and potentially unlawful manner.”
But Vegas oddsmakers would likely bet against it.