The Kentucky Supreme Court ruled Thursday that emails and text messages created by public officials on private devices are not considered public records, a decision a dissenting justice warned could undermine “the public’s right to know what its government is doing.”
The case stemmed from a years-long legal challenge by the Kentucky Open Government Coalition. In a 2021 records request, the group sought text and email communications from private phones used by members of the Kentucky Fish and Wildlife Commission, a nine-member board overseeing the Kentucky Department of Fish and Wildlife Resources. The request was denied.
In the majority opinion, Justice Kelly Thompson—joined by Chief Justice Debra Lambert, Justice Angela Bisig, and Deputy Chief Justice Robert Conley—wrote that individual board members do not qualify as a “public agency” under the state’s Open Records Act. As a result, communications on their private devices are not subject to disclosure.
“[W]hen individual members are exchanging emails and texts with other people, even if these messages involve the duties of the Commission, the members are not acting for the Commission itself or doing anything that could bind the Commission. Therefore, there is little basis for requiring disclosure of such messages as they do not and cannot result in action by the Commission,” Thompson wrote.
He added that individuals who believe agencies are bypassing open records laws by using private devices could pursue civil lawsuits to investigate such actions through the discovery process.
Michael Abate, an attorney for the advocacy group, argued before the court that excluding private-device communications from disclosure would amount to “the destruction of transparency,” allowing public business to move beyond public scrutiny.
Attorneys for the wildlife department countered that requiring disclosure could force agencies to sift through thousands of personal messages and infringe on officials’ privacy—concerns the advocacy group dismissed as exaggerated. Republican statewide officials led by Attorney General Russell Coleman, along with the University of Kentucky, filed briefs supporting the department’s position.
Lisa Jackson, a spokesperson for the Kentucky Department of Fish and Wildlife Resources, said the agency “takes its open records obligations seriously” and will continue to comply with the law.
The ruling overturns a prior appeals court decision that had determined communications about public business on private devices should still be treated as public records.
Amye Bensenhaver, co-director of the Kentucky Open Government Coalition, said the decision contains “loopholes and traps” that agencies could exploit, adding it may have a “broad ripple effect” on transparency.
Abate also criticized the court’s suggestion to rely on civil lawsuits, calling it difficult to pursue without initial access to records. He urged lawmakers to clarify that public records remain accessible regardless of the communication method used.
“I don’t think anybody believes…it’s a good idea for us to delegate solely to public officials whether the public has a right to know what they’re doing by giving them carte blanche to choose their methods of communication to avoid public scrutiny,” Abate said.
Justice Shea Nickell, joined by Justice Michelle Keller, issued a dissent warning that the ruling “eviscerates the public’s right to know.”
“A government agency cannot be permitted to allow its servants to generate public records utilizing private communications mediums and subsequently refuse to produce those records upon request under the guise of a lack of control,” Nickell wrote. “If that were the law, government agencies could easily evade their ORA obligations by removing government email addresses or other publicly funded channels of communication, resulting in an end run around the ORA’s basic purpose of ensuring an informed citizenry which can hold its public servants accountable.”
In response, Thompson wrote that agencies can adjust internal practices by providing official email accounts and guidance for employees. He also noted that the state legislature has the authority to revise the Open Records Act to address such issues.
“It is our legislative branch’s responsibility to make such decisions, and we will not engage in legislating from the bench simply because the General Assembly has not yet acted,” Thompson wrote.
Nickell, however, argued that the majority effectively created new exemptions not previously defined in law.
“I cannot countenance such a result,” Nickell wrote.
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