KY Public Officials Can’t Use Private Cell Phones to Conduct Public Business | Opinion

By Amye Bensenhaver, November 06, 2023

While open government advocates rhapsodize about every judicial victory that advances the cause of public agency accountability, it is nearly impossible to overstate the importance of the Court of Appeals’ October 27 opinion in “Kentucky Open Government Coalition v Kentucky Department of Fish and Wildlife Resources Commission.”

Kentucky Attorney General Daniel Cameron’s 2021 “decision” to ignore the expansive definition of the term “public record” — and to focus exclusively on those records in the public agency’s physical possession — posed the gravest threat to the existence of the open records law to date. Public officials determined to evade public scrutiny rushed to their private cellphones and personal email accounts to conduct the public’s business — free, in Cameron’s view, from public oversight. No less than the future of the public’s “right to know” rested in the balance.

In a 32 page opinion authored by Judge Jeff Taylor, the Court of Appeals declared:”[Electronic] messages 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.” Fundamental to the appellate court’s analysis was the expansive statutory definition of the terms “public record” and “public agency,” and a rejection of the Commission’s privacy and undue burden arguments. But at a basic policy level, the opinion emphasized that:”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.”