23-ORD-057
March 15, 2023
In re: Phillip Hamm/McCracken County Sheriff’s Office
Summary: The McCracken County Sheriff’s Office (“Sheriff’s Office”)
did not violate the Open Records Act (“the Act”) when it denied a request
to inspect in-person an employee’s privately-owned cellphone. However,
to the extent photographs stored on the privately-owned cellphone were
“used” for an official government purpose, such photographs are “public
records” subject to inspection. The Sheriff’s Office also did not violate
the Act when it denied a request for records that do not exist.
Open Records Decision
Phillip Hamm (“the Appellant”) submitted to the Sheriff’s Office a request to
inspect public records containing multiple subparts. Subparts one and two sought
photographs and “typed reports” regarding the use of force to enter a specific property
and execute a search warrant on February 16, 2022. Subpart three sought
“documentation regarding” supervisory staff’s review of body-worn camera footage of
the execution of the search warrant. Subpart four sought “documentation showing”
supervisory staff approved of the search warrant before submitting it to the
authorizing judge. Subpart five sought any “documentation approving” the Sheriff
Office’s “use of out dated [sic] forms that do not comply with current” Department of
Justice standards for supplying affidavits in support of search warrants. Finally, in
subpart seven,1 the Appellant requested “an on-sight inspection of the cell phones
used by” two specific deputies “during the interview of” a specific person on February
14, 2022, and the same cellphones used during execution of the search warrant two
days later. The Appellant alleged the cellphones were used to take photographs or
videos of the search.
1
The Appellant does not challenge the Sheriff’s Office’s denial of subparts six or eight of the request.In a timely response, the Sheriff’s Office denied subparts one through five
because records responsive to those subparts “either never existed or no longer exist,
therefore making it impossible to produce” them for inspection. In response to subpart
seven, the Sheriff’s Office admitted the deputies used “their personal mobile devices”
during execution of the search warrant and the February 14, 2022, interview.
However, citing previous decisions of this Office, the Sheriff’s Office denied the
Appellant’s request because “stored data on private cell phones of a public agency’s
employees are not within the possession of the public agency” and is therefore not
subject to inspection. This appeal followed.
The Sheriff’s Office denied subparts one through five of the Appellant’s request
by stating affirmatively the records responsive to those subparts do not exist. Once a
public agency states affirmatively that a record does not exist, the burden shifts to
the requester to present a prima facie case that the requested record does or should
exist. See Bowling v. Lexington–Fayette Urb. Cnty. Gov’t, 172 S.W.3d 333, 341 (Ky.
2005). If the requester is able to make a prima facie case that the records do or should
exist, then the public agency “may also be called upon to prove that its search was
adequate.” City of Fort Thomas v. Cincinnati Enquirer, 406 S.W.3d 842, 848 n.3 (Ky.
2013) (citing Bowling, 172 S.W.3d at 341).
The Appellant has not attempted to make a prima facie case that records
responsive to subparts one through five exist. Rather, he argues the Sheriff’s Office’s
response is deficient because it does not specify whether the records once existed and
now they no longer do, or if they never existed. But the Sheriff’s Office affirmatively
stated the records “do not exist.”2 The burden shifts to the Appellant to show the
records do or should exist before the Sheriff’s Office is required to explain the
adequacy of its search, or explain why records that should exist no longer do. See
Bowling, 172 S.W.3d at 341; see also Eplion v. Burchett, 354 S.W.3d 598, 602–03 (Ky.
App. 2011) (because the requester made a prima facie case records should have
existed, he was entitled to an explanation that such records were destroyed). The
Appellant’s mere assertion that responsive records should exist is insufficient to
make a prima facie case.3 See, e.g., 22-ORD-169; 21-ORD-250; 21-ORD-174.
2
The Office also notes the McCracken County Sheriff was newly elected, and was not the Sheriff at
the time the search warrant was executed. Thus, while the Sheriff could not affirmatively conclude
that the records never existed, because he was not Sheriff when they would have allegedly been
created, he did affirmatively state that such records did not exist at the time of the request.
3
Although the Sheriff’s Office admits deputies “used” their personal cellphones during execution of
the search warrant, it did not state how the personal cellphones were used, and its statement does not
constitute an admission that the cellphones were used to take pictures of “the use of force” when
entering the property to execute the warrant. As such, the Sheriff Office’s admission does not
constitute a prima facie case that photographs “of the use of force,” as requested in subpart one, exist.Accordingly, he has not put forth sufficient evidence to require the Sheriff’s Office to
explain why no responsive records were located.
Finally, the Sheriff’s Office did not violate the Act when it denied the
Appellant’s request to conduct an in-person inspection of the deputies’ personal
cellphones. KRS 61.870(2) broadly defines “public records” as “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.” Cellphones,
however, are different in kind from “books, papers, maps, photographs, cards, tapes,
discs, diskettes, recordings, [and] software.” Id. A cellphone, like public offices and
computers, may contain some of these things, but the cellphone is not itself one of
these things. Nor is a cellphone “other documentation regardless of physical form or
characteristics.” KRS 61.870(2) (emphasis added). The Act does not permit general
inspection of a public official’s office or computer. Rather, it permits inspection of
“public records” contained within a public official’s office or computer. The same is
true of cellphones. The Act does not permit general inspection of a public officer’s
privately-owned cellphone.4
Moreover, this Office has previously found that emails and text messages
contained on privately-owned devices are not public records under KRS 61.870(2).
See, e.g., 15-ORD-226; 21-ORD-127; 21-ORD-146.5 That is because a public agency
does not prepare, own, possess, or retain records that are the property of its
employees. Moreover, text messages and emails generally are not “used” by a public
agency to take official action. Rather, public agencies communicate official action
through more formal means, such as issuing formal notices, letters, pleadings, or
other administrative documents. Nevertheless, there may be some circumstances in
which privately-owned records are “used” for an official government purpose. In 20-
ORD-109, the Office found that emails exchanged between inmates of correctional
facilities and other private individuals were not “public records” simply because the
4
Allowing such intrusion would implicate concerns under the Fourth Amendment, because
individuals possess a personal privacy interest in data stored on their privately-owned cellphones. Cf.
Commonwealth v. Reed, 647 S.W.3d 237, 250 (Ky. 2022) (recognizing “individuals have a reasonable
expectation of privacy in their cell phone’s cell-site location information”); Riley v. California, 573 U.S.
373, 401 (2014) (holding “a warrant is generally required before” searching a person’s cellphone).
5
The Franklin Circuit Court has also examined this question and determined that emails
exchanged on private email accounts, which were themselves advertised as the only method for
emailing a public official, are public records subject to inspection. See Ky. Open Gov’t Coalition, Inc. v.
Ky. Dept. of Fish & Wildlife, No. 21-CI-00680 (Franklin Cir. Ct. Jan. 25, 2021). However, the Court
“firmly [held] that subjecting text messages and other forms of private communications contained on
privately-owned devices to the Open Records Act would create an unreasonable burden on state
agencies in producing records and would grossly encroach on the private lives of state employees,
officials, and volunteers.” Id. at 20. The Franklin Circuit Court’s ruling is not final and is currently on
appeal. See Ky. Dept. of Fish & Wildlife Res. Comm’n v. Ky. Open Gov’t Coalition, Inc., No. 2022-CA-
0192 (Ky. App.).privately-owned kiosk from which the emails were exchanged was located in the
correctional facility. This Office found that such private communications could only
become public records if they were “used” for an official purpose, i.e., as evidence in a
disciplinary proceeding.6
Here, the Sheriff’s Office properly denied the Appellant’s request to inspect the
deputies’ privately-owned cellphones because cellphones are not themselves public
records. However, the Appellant alleges the deputies “used” their cellphones during
an interview to show photographs to a person, who then identified a suspect from
those photographs. His identification allegedly served as the basis for seeking a
search warrant of that person’s residence two days later. The Sheriff’s Office does not
deny this, and admits the cellphones were “used” in the interview. To the extent
photographs were used during the official act of a police interview for the purpose of
identifying a suspect and to seek a search warrant, then the photographs were “used”
by the Sheriff’s Office while carrying out its governmental function of investigating
crime. That would make the photographs public records subject to inspection, unless
an exemption under KRS 61.878(1) applies.7 But here, the Appellant did not request
to inspect the photographs used during the interview.8 He asked to inspect the
deputies’ cellphones, which are not “public records” under KRS 61.870(2).
Accordingly, the Sheriff’s Office did not violate the Act when it denied this subpart of
the Appellant’s request.
A party aggrieved by this decision may appeal it by initiating action in the
appropriate circuit court under KRS 61.880(5) and KRS 61.882 within 30 days from
the date of this decision. Under KRS 61.880(3), the Attorney General shall be notified
of any action in circuit court, but shall not be named as a party in that action or in
any subsequent proceedings. The Attorney General will accept notice of the complaint
emailed to OAGAppeals@ky.gov.
6
Emails exchanged between inmates and the official government email accounts of employees of
correctional facilities would also be “public records,” because the emails sent to inmates would be
“prepared” by the correctional facility, and emails the employees receive at their official government
email address would be “in the possession of” the correctional facility. See KRS 61.870(2).
7
It is for this reason that a public agency should print such photographs and use the printed copies,
as opposed to using a device to show such photographs to a person. An officer testifying in a criminal
trial would likely not want his or her cellphone or camera to be provided to a jury to show them
pictures. Rather, the pictures would be printed and entered into evidence as separate exhibits.
8
Rather, he did so by a separate request, which the Sheriff’s Office denied and which was the subject
of 23-ORD-039. In response to this later request, the Sheriff’s Office explained to the Appellant that
the photographs had been destroyed.Daniel Cameron
Attorney General
s/ Marc Manley
Marc Manley
Assistant Attorney General
#002
Distributed to:
Phillip Hamm
Ryan Norman
Cade Foster
Jana King