The Texas Tribune reports that a June 6 voicemail from Dr. Steve Hotze — a Houston resident described as a GOP powerbroker — to Governor Greg Abbott, and obtained through the state's open records law, urges the governor to send the National Guard to Houston with orders to shoot to kill protesters if they "start rioting like they have in Dallas."

The Tribune was unable to determine how or if the Texas governor responded to the voicemail.

Although Hotze appears to be a private individual, he created a public (and open) record when he left the voicemail for Governor Abbott.

The same would be true in Kentucky.

The term "public record" is broadly defined in our open records law to include "all books, papers, maps, photographs, cards, tapes, discs, diskettes, *recordings*, software, or other documentation *regardless of physical form or characteristics*, which are prepared, owned, used, in *the possession of or retained* by a public agency."

https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=45231

While an exception to the open records law, KRS 61.878(1)(i), authorizes agencies to withhold "[p]reliminaty drafts, notes, *correspondence with private individuals*, other than correspondence which is intended to give notice of final action of a public agency," that exception — like the 15 others — must be strictly construed.

https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=48230

https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=23058

Consistent with this statement of legislative policy, the Attorney General has, since at least 2000, limited the application of the exception to "that narrow category of public records that reflects letters exchanged by private citizens and public agencies or officials under conditions in which the candor of the correspondents depends on assurances of confidentiality."

https://ag.ky.gov/Priorities/Government-Transparency/orom/2000/00ORD168…

The Attorney General relied on this interpretation as recently as 2019.

https://ag.ky.gov/Priorities/Government-Transparency/orom/2019/19-ORD-2…

Thus, the exception does not extend to "all writings from individuals to a government agency." In particular, it excludes correspondence that is submitted with the expectation that "the [the public agency or official] will rely upon it to take some action."

Were it otherwise, a private individual could, for example, offer a public official a bribe in exchange for some action — by letter, email, text, or phone message — and avoid detection under the open records law.

The exception has not been examined by Kentucky's courts, but the Attorney General's long-standing interpretation of the exception for "correspondence with private individuals" yields the same result as in Texas where state officials released the voice mail to the Texas Tribune.

Perhaps Dr. Hotze does not care. But others would do well to think before they memorialize their intemperate thoughts in open public records.