Lawsuit says government business on private phones, emails should be public

Many Kentucky state and local government officials often use government-issued phones and email accounts to conduct public business. Their records are subject to the Open Records Act, which helps the public find out what they were doing.

But what about when officials deal with public business on privately owned devices or accounts?

The Kentucky Open Government Coalition, which advocates for transparency in government, has filed a lawsuit in Franklin Circuit Court, claiming that such public business conducted on private electronic accounts should be publicly disclosed.

“This practice has to stop. It is an insult to the public’s right to know,” said Amye Bensenhaver, a former assistant attorney general who specialized in Open Records and Meetings opinions. She is a founding member of the coalition.

The lawsuit would affect most state and local government officials but not state lawmakers, who have largely exempted themselves from the Open Records Act.

Kentucky legislators this year in regular session approved a law — House Bill 312 — that made significant changes to the Kentucky Open Records Act. Democratic Gov. Andy Beshear vetoed the bill but the Republican-led legislature overrode his veto

Under the new law that took effect June 29, access to legislative records is “governed by a statute that narrowly defines what they consider ‘public records’ and the definition excludes emails/texts on their private and public devices/accounts,” Bensenhaver said.

Most states require public disclosure of public business on privately-owned electronic devices, Bensenhaver said.

The position by the Kentucky Open Government Coalition in its lawsuit runs counter to that of Attorney General Daniel Cameron and the state Department of Fish and Wildlife, the defendant in the non-profit’s lawsuit.

Cameron’s office, which interprets the state’s open records and open meetings laws, said in an opinion issued July 19 that “when no public funds have been spent to procure the cell phone services, then a public agency does not ‘own’ the text messages.”

His opinion allowed the state Department of Fish and Wildlife Commission to withhold records of discussions about public business that were held by employees using their privately-owned electronic devices.

He said a request for text messages from the private cell phones of employees was not a request for ‘public records’ under state law, and the department did not violate the Open Records Act when it denied a request for the records.

“This interpretation violates the plain test of the Open Records Act and decades of practice across the commonwealth,” said the Kentucky Open Government Coalition in its 15-page lawsuit against the fish and wildlife department. The suit also was served to Cameron.

“If affirmed by this court, the commission’s interpretation will gut the Open Records Act and provide a road map for public officials to shield all manner of things from the citizens they serve,” said the non-profit.

Neither Cameron nor Karl Clinard, chairman of the fish and wildlife commission’s governing board, responded to requests for comment about the lawsuit.

The Kentucky Open Government Coalition, based in Hopkinsville, says it tries to preserve the rights of Kentuckians under its sunshine laws and to broaden public understanding of open government issues. It was founded in 2019 by Bensenhaver and Jennifer P. Brown, editor of the Hoptown Chronicle.

The coalition’s lawsuit said the nine members of the fish and wildlife commission are not provided with government devices or email addresses to conduct official state business. But the commission’s website lists personal contact information for each commissioner, including non-governmental street and email addresses and phone numbers.

It said in December 2018, at a training meeting for commissioners, attorneys for the Tourism, Arts and Heritage Cabinet, which oversees the commission, told the commissioners that personal phone and email messages were subject to public disclosure.

Three years earlier, on Dec. 30, 2015, the lawsuit said, then-Attorney General Jack Conway, on his last day in office, issued an opinion that, for the first time, said “all phone communications, including calls or text messages, made using a private cell phone that is paid for with private funds” are not public records.

The suit noted that in a recent newspaper interview Conway said the purpose of that ruling “was not to make all documents on personal devices beyond the reach of open records laws but allowed that ruling was perhaps ‘inartfully written.’”

Conway’s successor in the attorney general’s office, Andy Beshear, quickly issued a series of opinions disagreeing with Conway.

In early 2018, the Republican-led General Assembly tried to amend the Open Records Act to make Conway’s opinion the law.

Its legislation said public records shall not include any electronic communications from a private cell phone or other private electronic device that is paid for with private funds. The measure never became law.

Since then, Attorney General Cameron has issued opinions holding that records on public officials’ personal cell phones are exempt from the Open Records Act.

On Aug. 10, the Kentucky Open Government Coalition asked in an open records request for emails and text messages from several Fish and Wildlife commissioners and said the request was “not limited” to communications that took place on government-owned email accounts and cell phones.

The only records to be exempt, said the coalition, were those “of a purely personal nature unrelated to any governmental function.”

The commission ultimately said it was not producing any emails contained solely on commissioners’ personal devices or email accounts. It claimed that such records were not owned by the state and are not public records.

The non-profit says the Open Records Act broadly defines “public record” to mean all documentation “prepared, owned, used, in the possession of or retained by a public agency.”

It argues that emails and text messages between fish and wildlife commissioners about the agency’s business are public records because they were prepared and used by commission members, regardless of where they are stored.

The non-profit contends that it is entitled to seek injunctive and other unspecified relief from the commission’s actions, as well as attorney fees. It asks for a quick court ruling and is represented by attorneys Jon L. Fleischaker, Michael P. Abate and William R. Adams of the Louisville law firm of Kaplan Johnson Abate & Bird.

No court hearing has yet been scheduled on the lawsuit, which is before Franklin Circuit Judge Thomas Wingate.

Bensenhaver said similar suits are pending in two other state circuit courts but the coalition is not involved in them — one in Jefferson Circuit involving the Courier Journal and Louisville Metro Police Department and one in Madison Circuit involving the City of Richmond and WEKU, the National Public Radio-member station licensed in Richmond.