From KPA General Counsels, Kaplan, Johnson, Abate & Bird
This week brought three new lawsuits raising a critically important issue under the Open Records Act: whether communications sent from or received on a public employee’s personal device(s) are exempt from disclosure under the ORA, even if they concern public business.
This issue—which has the potential to put large swaths of public records out of requesters’ reach—came to the fore when Attorney General Daniel Cameron issued a series of opinions holding that such records are not subject to the ORA because public agencies do not “possess” records stored on private devices.
That interpretation purported to rest on a single decision from former Attorney General Jack Conway, issued on his final day in office in 2015. However, the current Attorney General ignores that his predecessor, now-Governor Andy Beshear, repeatedly repudiated the reasoning of the 2015 decision as inconsistent with the plain text of the Act, which defines the term public record to include anything “prepared” or “used” by the public agency, regardless of who possesses it.
Moreover, the current Attorney General disingenuously claims that the General Assembly acquiesced to the 2015 Conway opinion when, in fact, the legislature backed off a proposal to enact that interpretation into law in 2018 when KPA sounded the alarm about the devastating effects that would have on transparency across the state.
The three cases arise in different courts and highlight the important and wide-ranging consequences of the Attorney General’s new interpretation.
• The first of the three new cases, Kentucky Open Government Coalition v. Fish and Wildlife Commission, was filed in Franklin Circuit Court. It concerns the denial of a request for communications sent to or from Commissioners on their personal accounts and devices—the only ones they use for public business. If their denial is upheld it will pave the way for elected and appointed officials to avoid the Open Records Act, and the Open Meetings Act, by communicating freely out of the public view.
• The second case, Courier Journal v. Louisville Metro Police Department, was filed in Jefferson Circuit Court. It concerns a request for records sent and received on the personal devices of police officers involved in the fatal shooting of Louisville restaurant owner David McAtee. Public reporting suggests that some the officers involved called back to headquarters before the fatal shooting to encourage colleagues to watch what they were about to do on the city’s surveillance cameras, but LMPD denied the request for any such records on the ground that LMPD did not “possess” them.
• The third case, WEKU v. City of Richmond and Krystin Arnold, was filed in Madison Circuit Court. It concerns a request for records sent between a city Commissioner the City Manager and Attorney concerning the Commissioner’s presence in Washington, D.C. during the January 6 insurrection. The City, although admitting that hundreds of texts were deleted from city-owned devices, refused to produce records from the Commissioner’s personal device(s). And the Commissioner failed to respond to a request directed to her, as a public agency under the definition of the Open Records Act, for responsive records.
These scenarios illustrate how the new rulings from the AG threaten to undermine basic transparency across a range of issues, large to small. All three cases are being litigated by Jon Fleischaker, Michael Abate and Rick Adams of Kaplan, Johnson, Abate & Bird, the KPA’s outside General Counsels.
We will keep you updated on how the litigation progresses.