Can public officials shield themselves from open record laws by using their personal devices and emails to hide their public business?
Kentucky Open Government Coalition lawyer Michael Abate argued at the state Supreme Court hearing, held at Centre College Wednesday, that public business is public business, regardless of where a record is stored.
“There is no difference functionally between a record that two commissioners sent back and forth by text message or email on their personal email or on their official email accounts,” Abate, who also represents Louisville Public Media in First Amendment cases, said. “If they had it, it's all the public's business, and the Open Records Act isn't concerned with the convenience of officials.”
The case revolves around communications within the Kentucky Department of Fish and Wildlife Resource Commission. In 2021, when the Open Government Coalition requested communication between the commissioners, none had a state issued email address or phone number. They apparently used their private devices to conduct their public business. The commission denied the coalition's request for records held exclusively on private devices.
Jan West, the lawyer representing the commission, argued the contents of the records aren’t what make them public, but the place in which they were generated and stored. She also argued that an individual’s privacy could be at stake.
“They're kind of trying to backtrack now and say, ‘Oh, we're not asking anybody to search any phones,’ but I think they were,” West said. “I think they would have expected someone to search these phones, including personal messages, to determine which ones were actually personal and which ones were potentially related to the commission.”
Abate disagreed, saying he believes individuals should act in good faith in providing records upon an agency’s request.
The court is reviewing a Court of Appeals decision; last October, the appellate court ruled that messages on personal cell phones are public records when created for or used during government business.
Democratic Gov. Andy Beshear and Republican lawmakers supported a bill in 2024 that would have prevented such public disclosure of officials’ text messages and private emails. Abate, who also represents the Kentucky Press Association, said at the time that the bill would effectively destroy the Open Records Act. House Bill 509 failed to pass both chambers after public outcry.
Abate told the courts Wednesday it should be incumbent on the General Assembly to exclude instant messages — including text messages, Signal chats, or Teams messages — from public review, not the courts.
“If the General Assembly wants to exempt it, it has that right. And there have been attempts to do so, but they have failed, largely due to public backlash,” Abate said.
Under the state's open records law, which was originally created in 1976, any documentation "regardless of physical form or characteristics" that is "prepared, owned, used, in the possession of or retained by a public agency" is by definition a public record. The law exempts a number of specific records from disclosure, including records that contain personal information or preliminary correspondence with private individuals. Abate argues that the text messages should fall under the broad definition of a public record and should be subject to the same rules and exemptions of any other government communication.
Louisville Public Media is engaged in its own battle with public officials over whether text messages discussing public business should be open to public inspection. LPM sued Jefferson County Public Schools over withheld communications between top staff during the first day bus debacle in 2023. A Jefferson Circuit Court judge said earlier this year that JCPS must hand over the text messages, although the school district is appealing the decision.
Abate, who is representing Louisville Public Media in the lawsuit against JCPS, directly referenced the case in his oral arguments Wednesday, saying JCPS’s actions are an example of why text messages need to fall under the open records laws, or else public agencies can use them as a shield. An outside audit of JCPS found that individuals perceived text messages to not be subject to open records laws, and therefore used them for their communications.
“So not only does the public not have access to what was going on behind the scenes, the auditors who were hired to investigate and do a post mortem couldn't get access to key records,” Abate said, “Because the employees there perceived text messages were less discoverable, and that's how they were communicating.”
Lawyers also debated Wednesday whether it is “overly burdensome” for a public agency to have to search individual employee cell phones. The trial court found it would be, but the appellate court reversed that finding. Justice Kelly Thompson worried that the lawsuit could pose a privacy concern for individuals, especially if open records requests require private cell phones be searched by agencies.
“When they ask for every communication between Mr. X and Mr. Y that is a very overly broad invasion of their privacy interest,” Thompson said.
Justice Shea Nickell appeared to agree with the Court of Appeals decision, with Nickell calling it an “excellent opinion.” Nickell questioned the commission’s argument, asking if public officials should accept additional scrutiny as a price for serving in the public interest.
“Service on the [Fish and Wildlife Resource] board as a volunteer is voluntary and albeit an honor to serve in an area that you're passionate about,” Nickell said. “So how do you respond to those who would argue that acceptance of such public service implicitly includes an agreement to greater scrutiny?”
Abate argued the same, saying individuals who choose to use their phone to conduct public business should accept the consequences, and text messages should be treated like any other public record. He said he is not calling for an invasive search of private devices — merely that agencies request individuals voluntary turn over records, as they would for other records requests.
“All of these issues about what's at the margin — what might be a response of what happens if somebody won't comply in good faith — those can be sorted out in appropriate cases down the road,” Abate said. “But if this Court were to use those concerns to say these records are never subject to the open records law, we know what's going to happen, and it would be the death of transparency.”
State government and politics reporting is supported in part by the Corporation for Public Broadcasting.
