Kentucky Open Government Coalition, Inc. v. Kentucky Department of Fish and Wildlife Commission ( 2023 )

RENDERED: OCTOBER 27, 2023; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2022-CA-0170-MR
KENTUCKY OPEN GOVERNMENT
COALITION, INC. APPELLANT
APPEAL FROM FRANKLIN CIRCUIT COURT
v. HONORABLE THOMAS D. WINGATE, JUDGE
ACTION NO. 21-CI-00680
KENTUCKY DEPARTMENT OF FISH
AND WILDLIFE RESOURCES
COMMISSION APPELLEE
AND
NO. 2022-CA-0192-MR
KENTUCKY DEPARTMENT OF FISH
AND WILDLIFE RESOURCES
COMMISSION CROSS-APPELLANT
CROSS-APPEAL FROM FRANKLIN CIRCUIT COURT
v. HONORABLE THOMAS D. WINGATE, JUDGE
ACTION NO. 21-CI-00680
KENTUCKY OPEN GOVERNMENT
COALITION, INC. CROSS-APPELLEE
OPINION
AFFIRMING IN PART, VACATING IN PART,
AND REMANDING APPEAL NO. 2022-CA-0170-MR
AND AFFIRMING CROSS-APPEAL NO. 2022-CA-0192-MR
** ** ** ** **
BEFORE: COMBS, MCNEILL, AND TAYLOR, JUDGES.
TAYLOR, JUDGE: Kentucky Open Government Coalition, Inc. (Coalition)
brings Appeal No. 2022-CA-0170-MR from a January 25, 2022, Opinion and
Order of the Franklin Circuit Court adjudicating the Coalition’s entitlement to
certain records pursuant to the Kentucky Open Records Act, and the Kentucky
Department of Fish and Wildlife Resources Commission (Commission) brings
Cross-Appeal No. 2022-CA-0192-MR from the same January 25, 2022, Opinion
and Order of the Franklin Circuit Court. We affirm in part, vacate in part, and
remand Appeal No. 2022-CA-0170-MR, and we affirm Cross-Appeal No. 2022-
CA-0192-MR.
On August 10, 2021, the Coalition submitted an open records request
to the records custodian of the Kentucky Department of Fish and Wildlife. In
particular, the Coalition sought all emails and text messages sent between certain
present and past members of the Commission. This request was for the period of
time from June 1, 2020, to August 10, 2021. Most importantly, the request
specifically stated that it was “not limited to communications that took place on
government-owned email accounts and cell phones.” Open Records Request at 2.
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The request expressly embraced “public records . . . generated on private cell
phones [and] on private email services[.]” Open Records Request at 2. It also
explicitly excluded any “[c]ommunications of a purely personal nature unrelated to
any governmental function.” Open Records Request at 2.
In response to the Coalition’s open records request, three responses
were furnished by the Commission on August 17, 2021; August 24, 2021; and
August 27, 2021. In the last response (August 27, 2021), the Commission stated:
In re: Brian Mackey/Department of Fish and Wildlife,
21-ORD-127 (2021) provides that documents solely in
the possession of individuals on their personal devices
are not owned by the Commonwealth and therefore are
not “public records” within the scope of the open records
act. See also KRS [Kentucky Revised Statutes] 61.870 et
seq. Commission members were provided with a copy of
your open records request, and were asked to produce
any responsive documents which may be contained in
their personal email. No such privately owned
communications have been provided for the
Department’s review or release. Further, members of the
Fish and Wildlife Resources Commission can only
conduct business when in a public meeting with a
quorum. By definition there can be no “action taken” by
individual commission members to make a final policy
decision for the Department on their own, or otherwise
conduct the business of the department outside of a
public meeting. See KRS 61.805 and 61.810. Therefore,
the personal emails/texts of Commission members are
not considered public records to be retained by the
Department.
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August 27, 2021, Open Records Request at 2. Thus, no records were produced that
were stored on the Commission members’ private email accounts or personal cell
phones.
On September 3, 2021, the Coalition filed a complaint in the Franklin
Circuit Court against the Commission. Therein, the Coalition alleged:
1. The Kentucky Open Government Coalition, Inc.
(“KOGC”) is a 501(c)(3) non-profit corporation with its
principal office address at 612 S. Main St., Suite 203,
Hopkinsville, KY 42240.
2. The Kentucky Department of Fish and Wildlife
Commission (“Commission”) is a nine-member board
established pursuant to KRS 150.022, with a principal
office address of 1 Sportsman’s Lane, Frankfort, KY
40601. Its volunteer members are appointed by the
Governor. KRS 150.022(3). For purposes of the Open
Records Act, the Commission meets the definition of
“[p]ublic agency” contained in KRS 61.870(1).
3. This action is brought under KRS 61.882 to
challenge the Commission’s partial denial of an open
records request in violation of the Open Records Act
submitted by KOGC.
....
6. Upon information and belief, Commissioners are
not provided with government devices or email addresses
to conduct official Commission business.
7. Indeed, the Commission’s website lists each
Commissioner’s personal contact information, including
non-governmental street and e-mail addresses and phone
numbers. See Kentucky Department of Fish and Wildlife
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Resources, District Commission Members (attached
hereto as Exhibit 1).
8. Upon information and belief, Commissioners send
and receive all agency-related communications, including
emails and text messages, on non-government devices
and accounts.
9. Any communications sent or received by the
Commission members regarding their roles as
Commissioners constitute public records regardless of
the device or account from which they were sent or
received. See KRS 61.870(2), 61.878(1)(r).
....
30. On August 10, 2021, the Kentucky Open
Government Coalition submitted the Open Records
request attached hereto as Exhibit 2. That request
sought:
All emails and text messages that were sent
from 1 June 2020 to present time, between
any 2 or more of the following individuals
listed: Rich Storm (former Commissioner
KDFWR), Brian Clark (deputy
commissioner/acting commissione[r]
KDFWR), KDFWR Commission Chairman-
Karl Clinard, Jeff Eaton (past 6th district
commissioner), KDFWR Commission
members, Representative C. Ed Massey and
Representative Matthew Koch.
31. The request was explicit that it “is not limited to
communications that took place on government-owned
email accounts and cell phones.” Id. (emphasis in
original). Rather, “[t]he scope of Coalition’s request
should additionally include all responsive public records
which were generated on private cell phones, on private
email services, or through other private communication
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channels.” Id. “KRS 61.870(2) provides that records
which are prepared or used by a public agency are public
records subject to the Open Records Act, equal to those
which are owned or retained by a public agency.” Id.
“The only responsive records exempt from disclosure,
regardless of what kind of device they were sent from or
received on, are ‘[c]ommunications of a purely personal
nature unrelated to any governmental function.’” [Id.]
(quoting KRS 61.878(1)(r)).
32. On August 17, 2021, the Commission provided an
initial response to KOGC, including some of the
responsive records (“First Response”). The First
Response is attached hereto as Exhibit 3.
33. The First Response indicated that other documents
would be reviewed for redaction and be available by
August 24, 2021. It did not, however, state whether the
Commission would search the personal phones or email
accounts of any of the Commissioners named in the
request.
34. On August 24, 2021, the Commission provided
another response to KOGC (“Second Response”),
informing it that it would need more time to review the
responsive records for production and would not be
meeting its self-imposed deadline. The Second Response
is attached hereto as Exhibit 4.
35. As with the First Response, the Second Response
did not indicate whether the Commission was searching
the personal phones or email accounts of any of the
Commissioners named in the request.
36. The following day, KOGC emailed the
Commission, asking it to “confirm if your search for
responsive records includes emails sent or received
exclusively on private devices/addresses?” Aug. 25
Email (attached hereto as Exhibit 5). The email noted
that “[a]ll of the responsive records I have reviewed so
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far have at least one email address that is government-
owned.”
37. The email went on to note that it was KOGC’s
“understanding that several commission members use
private email to conduct public business,” [which] would
make the documents “public records under the definition
set out in the Open Records Act.” Id. KOGC asked the
Commission to confirm “if emails that took place only on
private servers are being reviewed as part of my
request?”
38. On August 27, 2021, the Commission sent a third
and final response to KOGC (“Third Response”). The
Third Response is attached hereto as Exhibit 6.
39. The Third Response included a link where
additional documents were made available. It also made
clear that the Commission was not producing any emails
contained solely on Commissioners’ personal devices or
email accounts.
40. The Third Response stated that “[i]n response to
your email of August 25, 2021, In re: Brian
Mackey/Department of Fish and Wildlife, 21-ORD-127
(2021) provides that documents solely in the possession
of individuals on their personal devices are not owned by
the Commonwealth and therefore are not [‘]public
records[’] within the scope of the open records act.”
41. Although the Third Response stated that
“Commission members were provided with a copy of
your open records request, and were asked to produce
any responsive documents which may be contained in
their personal email,” it confirmed that “[n]o such
privately owned communications have been provided for
the Department’s review or release.” Id.
42. Thus, the Commission has failed to provide any
communications between and among the Commissioners
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on their private devices or email accounts from which
they do all Commission business, relying on the legally
incorrect assertion that these are not “public records.”
43. The Third Response also advanced arguments
about the Open Meetings Act that are utterly irrelevant to
the question of whether the Commissioners’ emails are
public records within the meaning of KRS 61.870(2).
Namely, it argued:
Further, members of the Fish and Wildlife
Resources Commission can only conduct
business when in a public meeting with a
quorum. By definition there can be no
“action taken” by individual commission
members to make a final policy decision for
the Department on their own, or otherwise
conduct the business of the department
outside of a public meeting. See KRS
61.805 and 61.810. Therefore, the personal
emails/texts of Commission members are
not considered public records to be retained
by the Department.
44. This argument is so patently deficient as to
constitute bad faith. Although the emails and texts might
well reveal a violation of the Open Meetings Act, the
Commissioners’ compliance with that statute has no
bearing on whether the emails and texts in question are
public records under the ORA. The Commission’s own
lawyers trained the Commissioners that all their
communications, regardless of device, are subject to the
ORA unless a specific exemption applies. See supra.
....
47. Emails and text messages between Commissioners
about the agency’s business are public records within the
meaning of KRS 61.870(2) because they were “prepared”
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and “used” by the members of the Commission,
regardless of where they are stored.
48. If any Commissioners is [sic] the “sole possessor
of public records, the agency ‘is obligated to retrieve
them from [the employee] to facilitate public access to
the records.’” 17-ORD-273 (quoting 11-ORD-105).
49. The Commission willfully violated the Open
Records Act when it (1) disregarded the Act’s clear
statutory language to claim that records prepared and
used by Commission members were not “public records”;
(2) ignored the prior training that TAHC attorneys gave
Commissioners, which explained that even
communications on personal accounts and devices are
subject to the ORA if they pertain to their roles as
Commissioners; (3) refused to change course even after
KOGC pointed out the statutory language making clear
any record prepared or used by Commissioners in
performance of their duties are public records; (4) failed
to obtain responsive records from Commission members;
and (5) relied on inapplicable Open Meetings Act
provisions in an attempt to frustrate the public’s right to
learn what appointed Commissioners are communicating
with one another, perhaps in violation of that latter
statute.
50. Pursuant to KRS 61.882(2), the KOGC is entitled
to seek injunctive and other relief from the Commission’s
actions with respect to its Open Records request directly
from this Court without first seeking relief from the
Attorney General under KRS 61.880.
51. Pursuant to KRS 61.882(4), this action should take
precedence on this Court’s docket over all other actions
and should be assigned for hearing or trial at the earliest
practicable date.
52. Pursuant to KRS 61.882(5), the KOGA is entitled
to recover its costs, reasonable attorneys’ fees from this
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lawsuit, and statutory penalties because the Commission
has willfully withheld the requested records in violation
of the Open Records Act.
September 3, 2021, Complaint at 2, 3, and 9-14 (footnote omitted).
The Commission filed an answer and, thereafter, filed a motion for
summary judgment. In the motion, the Commission initially explained that “[t]his
case presents an issue of first impression for this Court arising from contrasting
opinions of current and former Attorney Generals of the Commonwealth of
Kentucky.” October 29, 2021, motion for summary judgment at 1. Thereafter, the
Commission pointed out that the Commission members were volunteer members
and that their cell phones were in no part paid for by the Commission. Rather, the
Commission members paid for their own cell phones. Additionally, the
Commission emphasized that the Commission members did not possess official
email accounts but instead maintained private email accounts. The Commission
argued that records (text messages or emails) stored on privately owned devices
were not public records in the possession of the Commission under Kentucky
Revised Statutes (KRS) 61.870(2). The Commission also maintained that the text
messages and emails were exempt from disclosure under KRS 61.878, as
communications of a purely personal nature. And, the Commission averred that
the records request was so broad as to be unduly burdensome.
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Thereafter, the Coalition also filed a motion for summary judgment.
The Coalition argued that “[a]ny communications sent or received by the
Commissioners regarding their role on the Fish and Wildlife Commission
constitute public records regardless of the device or account from which they were
sent or received.” Coalition’s October 29, 2021, motion for summary judgment at
9. The Coalition maintained that it only requested records or communications that
occurred between two or more members regarding their role as Commission
members. Also, the Coalition pointed out that it particularly excluded from the
request any documents of a purely personal nature. Citing to KRS 61.870(2), the
Coalition asserted that the requested records were clearly “prepared” or “used” by
the Commission members in relation to Commission business and, thus, were
public records subject to disclosure.
By Opinion and Order entered January 25, 2022, the circuit court
granted in part and denied in part the motions for summary judgment filed by the
Commission and the Coalition. The circuit court determined that emails
concerning business of the Commission sent to or received via the Commission
members’ private email accounts were public records subject to disclosure. On the
other hand, the circuit court determined that text messages concerning Commission
business sent to or received on the Commission members’ private cell phones were
not subject to disclosure. In reaching this decision, the circuit court reasoned:
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[T]he issue really turns to the plain language of KRS
61.870(2). As written, the statute includes records
“which are prepared, owned, used, in the possession of or
retained by a public agency.” KRS § 61.870(2)
(emphasis added). The use of “or” clearly indicates that
the statute does not take a possession only approach.
Rather, as written, the statute encompasses records that
are either: prepared, owned, used, in the possession of,
or retained by an agency. Thus, as the KOGC offers,
records used or prepared by an agency fall within the
scope of the Open Records Act regardless of where the
record is stored. A possession only approach does not
comport with the plain language of KRS 61.870(2) or the
general purpose of the Open Records Act. . . .
....
[B]ecause the Commissioners lack state email accounts
and their personal email accounts are listed on the
Commission’s official website as the point of contact, it
seems logical that emails sent or received via the
Commissioners’ personal email accounts concerning
state business are “prepared” and “used” by the
Commission, therefore placing the emails at issue within
the purview of the Open Records Act, absent an
exception applying.
However, the Court’s analysis does not stop there.
In the August 27, 2021, letter, the Commission stated:
Commission members were provided with a
copy of your open records request and were
asked to produce any responsive documents
which may be contained in their personal
email. No such privately owned
communications have been provided for the
Department’s review or release.
The language used by the Commission to deny producing
the requested emails is confusing and leads the Court to
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two (2) separate conclusions. First, if by the language
used in the August 27, 2021, letter, the Commission
means that the Commissioners were provided a copy of
the KOGC’s open records request and the
Commissioners searched their personal email accounts,
which they use for state business, and no responsive
records were found, then the Commission has acted in
accordance with the Open Records Act. An agency
cannot provide records which do not exist, and an agency
is not required to prove a negative when affirmatively
stating that records do not exist.
But, if by the language used in the August 27,
2021, letter, the Commission means that the
Commissioners were provided a copy of the KOGC’s
open records request and the Commissioners declined to
search for responsive records or turn over any emails
from their personal email accounts, which they
admittedly use for state business, then the Commission
has violated the Open Records Act. Accordingly, the
Court REMANDS this matter to the Commission and the
Commission is ORDERED to obtain any emails from
the Commissioners’ personal email accounts that relate to
the KOGC’s open records request. The Commission
shall then analyze whether any records are subject to
being withheld under a specific exemption and outline
how the exemption applies to each withheld record.
....
Despite the Court’s holding with respect to emails
on a private email account, the Court finds that text
messages and other forms of communication sent or
received on private devices are exempt from disclosure
under the Open Records Act pursuant to KRS 61.872(6)
and general personal privacy concerns. “‘Although the
general policy of the Open Records Act favors broad
availability of public records, that availability is not
unlimited.’ ‘Perhaps the main exception to the general
presumption that public records are subject to public
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inspection is contained in KRS 61.872(6), which
provides that an otherwise valid open records request
may be denied if complying with it would cause ‘an
unreasonable burden[.]’” Department Of Kentucky State
Police v. Courier Journal, 601 S.W.3d 501, 505 (Ky. Ct.
App. 2020) (quoting Commonwealth v. Chestnut, 250
S.W.3d 655, 664 (Ky. 2008)). Whether an open records
request falls within this exception is a highly fact-specific
determination and requires clear and convincing
evidence. Courier Journal, 601 S.W.3d at 505-06; KRS
§ 61.872(6).
First, the Court cannot in good faith adopt the
KOGC’s desired ruling. Doing so would lead to
permitted fishing expeditions into the private cell phones
and private lives of state employees, officials, volunteers,
etc. There is no question that publicly funded cell phones
are subject to the Open Records Act because the purpose
of publicly funded cell phones is to conduct state
business. However, it is unfathomable for the
government to force state employees, officials, and
volunteers to hand over their privately-owned devices for
inspection of possible records.
Realistically, it is impractical to subject private cell
phones to the Open Records Act. 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. This would create an unreasonable burden.
The substantial volume of records involved exacerbates
the difficulty of separating personal data from non-
personal data. Additionally, when considering the sheer
number of state employees, officials, volunteers, etc.
whose privately-owned cell phones would be subject to
open records requests, it would make responding to any
such open records request unmanageable for state
agencies.
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Moreover, the Court must state that requiring state
employees, officials, volunteers, etc. to hand over a
personal cell phone, for which no public funds were
spent, and thus is not traditionally used, nor should be
used, for official business, is highly invasive. State
employees, officials, and volunteers still possess a right
to privacy and the right to maintain personal lives free
from government overreach. Thus, the Court’s holding
goes to more than just the burden that sorting through
private cell phones would cause state agencies, the
Attorney General’s Office, and reviewing courts. The
Court is highly concerned about the government
overreach in forcing state employees, officials, and
volunteers to hand over their privately-owned devices for
the government to browse. State employees, officials,
volunteers, etc. are entitled to privacy and broadly
subjecting their privately-owned devices, which arguably
would then include their private social media accounts
and any other channels of communication, would
absolutely discourage any person from state employment,
running for public office, or accepting the honor of
serving on a state board.
In the end, emails sent or received from a private
email account and text messages and other private forms
of communication are fundamentally different. Text
messages and other private forms of communication are
generally not accepted forms of communication for
government business. Subjecting text messages and
messages contained on other private channels of
communication to disclosure would serve no valid public
interest and would instead invade individuals’ privacy
interests. Further, text messages and other private forms
of communication are contained on cell phones, which
here are privately-owned. The ultimate responsibility in
curbing the use of private devices for public business
rests with state agencies. State agencies shall instruct
employees, officials, and volunteers not to conduct state
business on privately-owned devices. State agencies also
have the power to issue publicly funded cell phones for
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employees, officials, and volunteers to conduct state
business. Again, the Court admonishes state employees,
officials, volunteers, etc. from using privately-owned
devices to conduct state business, but the Court firmly
holds that subjecting text messages and other forms of
communication contained on privately-owned devices to
the Open Records Act would create an unreasonable
burden on state agencies in producing records and would
grossly encroach on the private lives of state employees,
officials, and volunteers.
January 25, 2022, Opinion and Order at 10-17 (footnotes omitted). The court also
concluded that the Commission did not willfully withhold public documents in
contravention of KRS 61.882.
The Coalition filed Appeal No. 2022-CA-0170-MR and the
Commission filed Cross-Appeal No. 2022-CA-0192-MR from the January 25,
2022, Opinion and Order. We shall initially consider Appeal No. 2022-CA-0170-
MR and then Cross-Appeal No. 2022-CA-0192-MR.
To begin, summary judgment is proper when there exists no genuine
issue as to any material fact and movant is entitled to judgment as a matter of law.
Kentucky Rules of Civil Procedure (CR) 56.03; Steelvest, Inc. v. Scansteel Service
Center, Inc., 807 S.W.2d 476 (Ky. 1991). All facts and inferences therefrom are
viewed in a light most favorable to the nonmoving party. Steelvest, 807 S.W.2d at
480. As there are no factual issues, our review looks to any questions of law, said
review being de novo. Brown v. Griffin, 505 S.W.3d 777, 781 (Ky. App. 2016).
Our review proceeds accordingly.
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APPEAL NO. 2022-CA-0170-MR
The Coalition contends that the circuit court erroneously determined
that communications in the form of text messages concerning Commission
business sent from or stored upon the private personal devices (cell phones) of
Commission members were exempt from disclosure under KRS 61.872(6) or due
to privacy issues. Under the Open Records Act, the Coalition argues that public
records are simply documents prepared by or used by a public agency. KRS
61.870. The Coalition points out that the location of the public record is irrelevant.
Therefore, the Coalition maintains that text messages, concerning Commission
affairs, stored on the members’ private cell phones are public records. Moreover,
the Coalition argues that the Commission failed to introduce clear and convincing
evidence that disclosure of the text messages would be unduly burdensome per
KRS 61.872(6). And, the Coalition points out that its open records request
specifically excluded all personal text messages.
Open Records Act – Text Messages
The Open Records Act is codified in KRS 61.870 to KRS 61.884.
Therein, the General Assembly boldly “declar[ed] that the basic policy of KRS
61.870 to 61.884 is that free and open examination of public records is in the
public interest[.]” KRS 61.871. The General Assembly understood that
government transparency and a well-informed citizenry are vital to the function
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and the survival of our democracy. So, in Kentucky, “[a]ll public records shall be
open for inspection[.]” KRS 61.872(1). To that end, the Kentucky Supreme Court
has recognized that the Open Records Act “generally favors disclosure.” Univ. of
Ky. v. Kernel Press, Inc., 620 S.W.3d 43, 52 (Ky. 2021). There are limited
exceptions or exclusions to disclosure of public records, but “the exceptions
provided for by KRS 61.878 or otherwise provided by law shall be strictly
construed[.]” KRS 61.871. When a public records request is denied, the response
by the agency must “include a statement of the specific exception authorizing the
withholding of the record and a brief explanation of how the exception applies to
the record withheld.” KRS 61.880(1).
The Open Records Act defines “public record” as:
(2) “Public record” means all books, papers, maps,
photographs, cards, tapes, discs, diskettes, recordings,
software, or other documentation regardless of physical
form or characteristics, which are prepared, owned, used,
in the possession of or retained by a public agency.
“Public record” shall not include any records owned or
maintained by or for a body referred to in subsection
(1)(h) of this section that are not related to functions,
activities, programs, or operations funded by state or
local authority[.]
KRS 61.870(2). Also, public agency is defined as:
(1) “Public agency” means:
(a) Every state or local government officer;
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(b) Every state or local government department,
division, bureau, board, commission, and authority;
(c) Every state or local legislative board, commission,
committee, and officer;
(d) Every county and city governing body, council,
school district board, special district board, and
municipal corporation;
(e) Every state or local court or judicial agency;
(f) Every state or local government agency, including
the policy-making board of an institution of
education, created by or pursuant to state or local
statute, executive order, ordinance, resolution, or
other legislative act;
(g) Any body created by state or local authority in any
branch of government;
(h) Any body which, within any fiscal year, derives at
least twenty-five percent (25%) of its funds
expended by it in the Commonwealth of Kentucky
from state or local authority funds. However, any
funds derived from a state or local authority in
compensation for goods or services that are provided
by a contract obtained through a public competitive
procurement process shall not be included in the
determination of whether a body is a public agency
under this subsection;
(i) Any entity where the majority of its governing
body is appointed by a public agency as defined in
paragraph (a), (b), (c), (d), (e), (f), (g), (h), (j), or (k)
of this subsection; by a member or employee of such
a public agency; or by any combination thereof;
(j) Any board, commission, committee, subcommittee,
ad hoc committee, advisory committee, council, or
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agency, except for a committee of a hospital medical
staff, established, created, and controlled by a public
agency as defined in paragraph (a), (b), (c), (d), (e),
(f), (g), (h), (i), or (k) of this subsection; and
(k) Any interagency body of two (2) or more public
agencies where each public agency is defined in
paragraph (a), (b), (c), (d), (e), (f), (g), (h), (i), or (j)
of this subsection[.]
KRS 61.870(1).
Under KRS 61.870(2), the ambit of what constitutes a public record is
expansive; it includes papers, books, recordings, or “other documentation
regardless of physical form or characteristics” that are prepared, used, in the
possession of, or retained by a public agency. Considering this unambiguous
definition, a public record may be prepared by or used by a public agency but not
necessarily in the possession of a public agency. Accordingly, a text message
stored on a cell phone would qualify as electronic documentation pursuant to KRS
61.870(2).
Likewise, public agency is broadly defined as including every state
government officer, board, commission or any body created by state authority.
KRS 61.870(1). The Commission is created by KRS 150.022, and its members are
appointed by the Governor and confirmed by the Kentucky Senate. The
Commission members are not paid employees and are required to take the
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constitutional oath of office. Considering the unambiguous language of KRS
61.870, the Commission and/or its members certainly qualify as public agencies.
Based on our review of applicable law, we are of the opinion that text
messages stored on personal cell phones are public records when such messages
are prepared by or used by the members of the Commission and relate to or
concern Commission business. To hold otherwise would certainly defeat the
underlying purpose of the Open Records Act as public officials could easily evade
disclosure of public records by simply utilizing their personal cell phones.
Additionally, in this case, Commission members were not provided with official
email accounts or cell phones, thus necessitating the use of their personal phones
for Commission business.
As to the text messages, both the Commission and its members have a
duty to produce public records within their “custody or control.” KRS 61.872(4).
It is beyond cavil that the Commission members have custody or control over text
messages stored on their personal cell phones, and as either agents of the
Commission or as officials thereof, the Commission members are bound by the
Open Records Act. See Edmondson v. Alig, 926 S.W.2d 856, 859 (Ky. App.
1996).
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Therefore, we hold that text messages related to Commission business
and stored on personal cell phones of its members are public records generally
subject to disclosure under the Open Records Act absent an applicable exception.
Exceptions – Unreasonable Burden
As set forth above, public records are generally subject to disclosure;
however, such public records may be excepted from disclosure “[i]f the application
places an unreasonable burden in producing public records” upon the public
agency. KRS 61.872(6). As to this exception, the Kentucky Supreme Court has
instructed that “a public agency refusing to comply with an open records request
on this unreasonable-burden basis faces a high proof threshold since the agency
must show the existence of the unreasonable burden ‘by clear and convincing
evidence.’” Commonwealth v. Chestnut, 250 S.W.3d 655, 664 (Ky. 2008) (quoting
KRS 61.872(6)). The initial determination of unreasonable burden is highly fact
specific and must be considered on a case-by-case basis. Dep’t of Ky. State Police
v. Courier Journal, 601 S.W.3d 501, 505-06 (Ky. App. 2020). As an appellate
court, we normally “review the circuit court’s factual findings for clear error, and
issues concerning the construction of the Open Records Act de novo.” Salinas v.
Correct Care Sols., LLC, 559 S.W.3d 853, 856 (Ky. App. 2018) (citation omitted).
However, in this case, the circuit court rendered summary judgment,
triggering our review under CR 56 and whether there exists a genuine issue as to
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any material fact. In its Opinion and Order granting summary judgment, the circuit
court determined that the Coalition’s request for text messages constituted an
unreasonable burden on state agencies. As a basis for its decision, the circuit court
believed that “when considering the sheer number of state employees, officials,
volunteers, etc. whose privately-owned cell phones would be subject to open
records requests, it would make responding to any such open records request
unmanageable for state agencies.” Opinion and Order at 15. In so ruling, the
circuit court was concerned generally with “the sheer number” of open records
requests that could possibly flow from permitting disclosure of public records in
the form of text messages stored on personal cell phones of all public officials or
employees. However, the unreasonable burden inquiry must be considered on a
case-by-case basis. See Dep’t of Ky. State Police, 601 S.W.3d at 505-06 (“The
statute contemplates a case-specific approach[.]”); Chestnut, 250 S.W.3d at 665
(holding that “the DOC’s argument regarding the unreasonable burden of
complying with open records requests of inmates as a whole class of people misses
the mark because the unreasonable burden language in KRS 61.878(6) focuses on a
singular ‘application,’ not a group of applications from an entire class of
applicants.”). Therefore, the relevant inquiry is whether this particular open
records request by the Coalition constitutes an unreasonable burden upon the
Commission and its members considering the particular facts of this case. This
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question was left unanswered by the circuit court. We, thus, vacate the circuit
court’s determination of unreasonable burden, and upon remand, the circuit court
shall reconsider same based upon the particular facts of this case as pertains to the
requests submitted to the Commission.
Exceptions – Privacy
Under the Open Records Act, public records may be excepted from
disclosure if the record contains “information of a personal nature where the public
disclosure thereof would constitute a clearly unwarranted invasion of personal
privacy[.]” KRS 61.878(1)(a). When determining whether a public record is
excepted, the Court “ ‘must balance the interest in personal privacy the General
Assembly meant to protect, on the one hand, against, on the other, the public
interest in disclosure.’ ” Univ. of Ky., 620 S.W.3d at 59 (quoting Kentucky New
Era, Inc. v. City of Hopkinsville, 415 S.W.3d 76, 82 (Ky. 2013)).
In its Opinion and Order, the circuit court was concerned with the
privacy interests of state employees and officials in their personal cell phones. The
circuit court was “highly concerned about the government overreach in forcing
state employees, officials, and volunteers to hand over their privately-owned
devices for the government to browse” for public records.1 Opinion and Order at
1
We note members of the Kentucky Department of Fish and Wildlife Resources Commission
(Commission) could simply search their cell phones for public records and transmit those public
records to the Commission.
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16. At the same time, the circuit court inexplicably “admonishe[d] state
employees, officials, volunteers, etc. from using privately-owned devices to
conduct state business[.]” Opinion and Order at 17.
The Commission has also argued that its members possess privacy
interests in their personal cell phones that preclude disclosure of text messages
relating to Commission business under the Open Records Act. However, it is
incongruous for the Commission to argue that its members have such a privacy
interest in personal cell phones while not providing its members with cell phones,
thus necessitating the members use of private cell phones for official business.
While public officials and employees certainly possess privacy
interests in their personal cell phones, public officials and employees’ privacy
interests in text messages that relate to official business are a different matter. The
Open Records Act recognizes a privacy exemption as to personal information
contained in public records. KRS 61.878(1)(a). Here, however, the Commission
has not demonstrated that the text messages sought in the open records request
contained personal information. In fact, information in text messages of a personal
nature was specifically excluded from the open records request by the Coalition.
To categorically exclude all text messages on personal cell phones
from the scope of the Open Records Act would surely operate to encourage the use
of personal electronic devices and place vital public records beyond the reach of
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citizens. While this Court is mindful of the privacy interests of public officials and
employees, it also understands that open access to public records is an essential
check on the power of public officials and employees. Current events speak to the
necessity of holding public officials accountable and of the public’s right to know
whether public officials and agencies are properly performing their respective
official duties. Hence, we conclude that the circuit court erred by determining that
text messages stored upon personal cell phones of Commission members were not
subject to disclosure under the Open Records Act.
Willful Violation
The Coalition also argues that the circuit court erred by finding that
the Commission did not willfully violate the Open Records Act. In particular, the
Coalition maintains that the Commission acted in a conscious and deliberate
disregard for the Coalition’s rights by not producing public records on personal
cell phones and email accounts. The Coalition points out that the Commission did
not provide its members with cell phones or official email accounts, thus
necessitating the members use of private cell phones and email accounts. As a
result, according to the Coalition, public documents were necessarily stored on the
private devices and in the private email accounts of Commission members.
As to a willful violation of the Open Records Act, KRS 61.882
provides, in relevant part:
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Any person who prevails against any agency in any
action in the courts regarding a violation of KRS
61.870 to 61.884 may, upon a finding that the records
were willfully withheld in violation of KRS
61.870 to 61.884, be awarded costs, including reasonable
attorney’s fees, incurred in connection with the legal
action. If such person prevails in part, the court may in
its discretion award him costs or an appropriate portion
thereof. In addition, it shall be within the discretion of
the court to award the person an amount not to exceed
twenty-five dollars ($25) for each day that he was denied
the right to inspect or copy said public record.
Attorney’s fees, costs, and awards under this subsection
shall be paid by the agency that the court determines is
responsible for the violation.
KRS 61.882(5). Under KRS 61.882(5), the term “‘willful’ connotes that the
agency withheld requested records without plausible justification and with
conscious disregard of the requester’s rights.” City of Fort Thomas v. Cincinnati
Enquirer, 406 S.W.3d 842, 854 (Ky. 2013).
In its Opinion and Order, the circuit court believed that the
Commission did not willfully fail to comply with the Coalition’s open records
request. And, upon the whole, we cannot conclude that the circuit court erred. In
fact, we recognize that Kentucky law surrounding the Coalition’s open records
request as to personal email accounts and text messages stored on personal cell
phones was unsettled. Consequently, we conclude that the circuit court properly
found that the Commission did not act willfully pursuant to KRS 61.882(5).
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We view any remaining contentions of error raised by the Coalition to
be moot or without merit.
CROSS-APPEAL NO. 2022-CA-0192-MR
The Commission argues on cross-appeal that the circuit court
erroneously concluded that emails concerning Commission business stored on
private email accounts of its members are public records subject to disclosure
under the Open Records Act.
For the reasons set forth in Appeal No. 2022-CA-0170-MR, we,
likewise, conclude that emails concerning Commission business that are stored on
the members’ personal email accounts qualify as public records subject to
disclosure under the Open Records Act. Additionally, we reject the Commission’s
argument that official documents of the Commission may only be generated by a
quorum of members. As set forth in the above appeal, public records of a public
agency are not so narrowly defined under the Open Records Act.
The Commission also asserts that the open records request by the
Coalition was overly broad and unreasonable burdensome under KRS 61.872(6).
However, the Commission failed to set forth particular facts demonstrating that the
Commission would be unreasonably burdened by complying with the open records
request by the Coalition. Instead, the Commission argues that the “possibility of
unfettered fishing expeditions into private emails and texts . . . places an undue
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burden on public agencies” and that with “nearly four hundred (400) boards and
commissions” in Kentucky, “[i]t would be manifestly unjust to force agencies and
individual board or commission members . . . to separate all personal emails from
agency emails, [and] turn over information from their private cell phones[.]”
Commission’s Brief at 19. These arguments concern the general effect of open
records requests possibly made in futuro upon Kentucky’s commissions, boards,
and members thereof. However, it is incumbent upon the Commission to
demonstrate with particular facts that the Commission’s compliance with the
instant open records request by the Coalition would be unreasonably burdensome.
Based on our review of the record, we conclude that the circuit court properly
rejected the Commission’s argument that disclosure of the emails was exempt from
disclosure under KRS 61.872(6).
We view any remaining contentions of error as moot or without merit.
SUMMARY
In Appeal No. 2022-CA-0170-MR, we hold that text messages related
to Commission business and stored on personal cell phones of its members are
public records generally subject to disclosure under the Open Records Act. As to
the exemption of undue burden under KRS 61.872(6), we vacate the circuit court’s
determination of undue burden, and upon remand, the circuit court shall reconsider
same based upon the particular facts of this case as pertains to the Commission and
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its members only. We affirm the circuit court’s decision that the Commission’s
partial denial of the open records request by the Coalition was not willful per KRS
61.882(5).
In Cross-Appeal 2022-CA-0192-MR, we affirm the circuit court’s
decision that emails concerning Commission business that are stored on the
members’ personal email accounts qualify as public records subject to disclosure
under the Open Records Act and are not exempt from disclosure under KRS
61.872(6).
For the foregoing reasons, the Opinion and Order of the Franklin
Circuit Court is affirmed in part, vacated in part, and remanded for proceedings
consistent with this Opinion in Appeal No. 2022-CA-0170-MR, and is affirmed in
Cross-Appeal No. 2022-CA-0192-MR.
COMBS, JUDGE, CONCURS.
MCNEILL, JUDGE, CONCURS AND FILES SEPARATE
OPINION.
MCNEILL, JUDGE, CONCURRING: In an opinion about texts and
emails, we must be sure to not send the wrong message. While I concur with the
majority’s Opinion, I write separately to assuage any concerns the Kentucky Open
Records Act2 (“the Act”) requires public agencies to turn over private cell phones
2
Kentucky Revised Statutes (KRS) 61.870 to 61.884.
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or that today’s holding will impose an extreme burden on agencies to identify and
produce all public records generated on private cell phones or private email
accounts. Our Opinion merely holds 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.” Majority Opinion at 22,
28 (emphasis added).
Thus, only those public records not covered by an exemption would
be subject to disclosure. “KRS 61.878(1) provides fourteen categories of public
records that are [excluded from disclosure under the Act.]” University of Kentucky
v. Kernel Press, Inc., 620 S.W.3d 43, 52 (Ky. 2021). The majority Opinion rightly
limits itself to only those exclusions argued by the Commission below and on
appeal: undue burden (KRS 61.872(6)) and invasion of personal privacy (KRS
61.878(1)(a)).
However, other exemptions could be especially relevant in the context
of (often informal) email and text message exchanges. KRS 61.878(1)(i) excludes
from disclosure “Preliminary drafts, notes, correspondence with private
individuals, other than correspondence which is intended to give notice of final
action of a public agency[,]” while KRS 61.878(1)(j) exempts “[p]reliminary
recommendations, and preliminary memoranda in which opinions are expressed or
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policies formulated or recommended[.]” In sum, the Act provides exceptions that
could limit, practically, the number of text messages or private emails an agency
would be required to produce in response to an open records request. However,
the Act also explicitly recognizes that “free and open examination of public
records . . . may cause inconvenience . . . to public officials or others.” KRS
61.871.
BRIEFS FOR APPELLANT/CROSS- BRIEF FOR APPELLEE/CROSS-
APPELLEE: APPELLANT:
Jon L. Fleischaker Jonathan D. Goldberg
Michael P. Abate Anthony R. Johnson
William R. Adams Jan M. West
Louisville, Kentucky Prospect, Kentucky
ORAL ARGUMENT FOR ORAL ARGUMENT FOR
APPELLANT/CROSS-APPELLEE: APPELLEE/CROSS-APPELLANT:
Michael P. Abate Jan M. West
Louisville, Kentucky Prospect, Kentucky
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