A judge ruled Tuesday that state officials cannot withhold emails about public business under the Kentucky Open Records Act simply by sending them through their personal accounts on private devices.
“The court admonishes state employees, officials and volunteers from using privately owned devices and accounts to conduct state business. However, the ultimate responsibility with enforcement rests with state agencies,” Franklin Circuit Judge Thomas Wingate wrote.
Wingate ruled in an open records appeal involving the Kentucky Department of Fish and Wildlife Resources.
An advocacy group, the Kentucky Open Government Coalition, last year requested copies of emails and texts between a handful of Fish & Wildlife commissioners and state lawmakers after a controversy over the hiring of a new leader at the agency.
Fish & Wildlife told the advocacy group that some emails and texts were unavailable because the commissioners used their own personal email accounts and phones to communicate with each other, not state devices, and so the agency didn’t have possession of those records.
Citing open records decisions by Attorney General Daniel Cameron and one of his predecessors, Jack Conway, Fish & Wildlife said the state’s public records disclosure law does not require state agencies to produce documents stored by officials on their own private devices.
“The personal emails/texts of commission members are not considered public records to be retained by the department,” Fish & Wildlife replied to the advocacy group last August.
However, Wingate took exception to that approach in his decision on Tuesday. He also questioned why Fish & Wildlife is overseen by commissioners who are not assigned state government email accounts to conduct public business.
The agency’s website specifically directs the public to contact commissioners by email, Wingate observed.
“The court is amazed that the commissioners, and presumably all other members of boards in the commonwealth, are not provided a state email account,” Wingate wrote.
“In fact, the court believes this entire issue can simply be eliminated by providing the commissioners, and those similarly situated, with state email accounts,” the judge wrote.
“It is truly a failure on the part of the commonwealth not to provide the commissioners, and others similarly situated, with state email accounts to conduct business. Had the commissioners been provided a state email account, there would be no need for personal email accounts to be used.”
Wingate sent the case back to Fish & Wildlife with instructions for the agency to review relevant emails from commissioners to determine which, if any, should be provided to the Kentucky Open Government Coalition to satisfy its open records request.
But on the separate issue of texts and other forms of communication by cell phone, Wingate said he would not require state officials to surrender their phones for an outside examination.
While he encouraged state officials to use a state phone to conduct public business, Wingate said Fish & Wildlife apparently did not provide the commissioners with a state phone. And he said he is uncomfortable going so far as to allow a search of texts on a private device.
“Realistically, it is impractical to subject private cell phones to the Open Records Act,” he wrote.
“As noted, doing so will likely lead to fishing expeditions and subject state agencies, the attorney general’s office and any reviewing court to invasively review private data to determine if any text messages or other private forms of communication constitute a public record subject to disclosure.”
Ultimately, Wingate wrote, the Kentucky Supreme Court is likely to get the final word on this controversy.
