Public records compromise still has giant loophole Skip to content

Public records compromise still has giant loophole

A public record is a public record regardless of where it is stored. This bill still ignores that.

3 min read
Photo by Priscilla Du Preez 🇨🇦 / Unsplash

An eleventh hour compromise committee substitute for House Bill 509 honors lawmakers’ commitment to eliminate the section of the bill that dramatically redefined the term “public record” as only a record which “documents, records, memorializes, or gives notice to a person outside the public agency of a transaction or final action.”

For this, we are grateful.

Assuming this is the final version of the sub to be discussed at tomorrow's noon meeting of the House State Government Committee, it was issued several hours before the scheduled meeting rather than at the commencement of the meeting.

For this, too, we are grateful.

But the committee sub retains language that limits public access to only electronic communications on publicly owned devices and publicly issued email accounts. If enacted as now proposed in the committee sub, HB 509 will permit public officers, employees, board members, and commission members to legally evade public oversight by limiting an agency’s duty “to search for or produce to a requesting party electronic information or documents that are stored or contained in: (a) A device that is the property of the public agency; or (b) An email account that is an agency-furnished or agency-designated email account.”

It is widely believed that the Kentucky Open Government Coalition’s judicial victories in its case against the Department of Fish and Wildlife Resources Commission on the “public discussions on private devices issue” was the primary impetus for HB 509.

The revised bill achieves the desired goal of reversing this judicial trend by fundamentally altering the nearly fifty-year-old open records law. Those intent on maintaining secrecy — often with regard to matters of greatest urgency to the public or of greatest embarrassment to the agency — will have an unimpeded path to avoiding the open records law by using their private devices and accounts. No matter how many times they are admonished to only use “an agency-furnished email account or agency-designated email account to conduct the [public’s] business” or threatened with “appropriate discipline” or removal if they do not, the practice will continue. But, upon passage of this bill, there will be no legally enforceable mechanism for exposing it once the bill takes effect.

Once again, let’s be clear. The Court of Appeals’ opinion in Kentucky Open Government Coalition v Kentucky Department of Fish and Wildlife Resources Commission expressly repudiates the claim that under current open records law, agencies are required “to turn over private cell phones” or “to identify and produce all public records generated on private cell phones or private email accounts.” The court held simply that “‘text messages [or emails] related to Commission business and stored on personal cell phones [or personal email accounts] of its members are public records generally subject to disclosure under the Open Records Act absent an applicable exception.’ Thus, only those public records not covered by an exemption would be subject to disclosure.”

Lawmakers can repeat the same “privacy” arguments until their tongues stiffen, but no one has ever asked for or expected, much less succeeded in demanding, the surrender of a private cellphone or the password to a private email account to fulfill an open records request. Their claim is false.

It is perpetuated for a wholly deceptive and misleading purpose. The expectation — our expectation — was that officials conducting public business on private devices and accounts would be tasked with treating those records as public records, subject to records management requirements, and retrieving those records, if pertinent, to assist the agency in responding to open records requests by forwarding them to the agency custodian for disclosure (if not exempt) or nondisclosure (if exempt).

A public record is a public record regardless of where it is stored. As cited in City of Louisville v. Brian Cullinan, “In the end, it is the nature and purpose of the document, not the place where it is kept, that determines its status as a public record.”

As for any appointed or elected official who finds this task too onerous — limiting the pool from which such “worthy” candidates might be drawn — I say good riddance. I, for one, have no use for public servants who cannot grasp that they are accountable to the public they serve, or fail to appreciate that “the formation of public policy is public business” and that “free and open examination of public records is in the public interest.”


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Amye Bensenhaver

Amye is a retired assistant AG who specialized in open records laws. She is the co-founder of the Kentucky Open Government Coalition. (Read the rest of her bio on the Contributors page.)