Murray State University regents were told during their annual retreat last week that emails and text messages kept exclusively on their personal accounts or devices are not subject to Kentucky’s Open Records Act – but that does not necessarily put those communications beyond reach.
General Counsel Rob Miller spent much of his annual update discussing a Kentucky Supreme Court decision that ended a nearly five-year dispute over records maintained on public officials’ private accounts and devices.
The case, Kentucky Open Government Coalition v. Kentucky Department of Fish and Wildlife Resources Commission, involved open records requests for emails and text messages sent to or from KDFWR commissioners using personal accounts and devices.
The trial court and Court of Appeals reached differing conclusions before the Supreme Court ruled that records maintained exclusively by individual commissioners on private accounts or devices were not subject to disclosure under the Kentucky Open Records Act because the commissioners themselves were not public agencies.
The court declined to assume public officials would move government business to private devices to avoid disclosure, Miller said, giving the KDFWR commissioners “the benefit of the doubt that they’re behaving forthrightly and honestly” in the absence of evidence otherwise.
But Miller stressed the ruling did not necessarily put those communications beyond reach.
The opinion also addressed what could happen if public officials deliberately used private accounts or devices to avoid disclosure. He noted the court pointed to two options for dealing with “malevolent actors” in the future - one being to ask the legislature to change the law.
“They said a second option for plaintiffs, when they think something is afoot, is to file a lawsuit,” he said. “So, they encouraged plaintiffs – in their opinion – to sue state entities when they think the state entity is behaving in a conspiratorial manner.”
Miller characterized litigation as “the check on this new system” and tied that remedy to the fact that KOGC did not name the individual KDFWR commissioners as defendants in its open records lawsuit.
“The court said, ‘In the case before us, Plaintiff, you did not sue the commissioners,’” he said. “The sentence should be finished with, ‘and you should have.’”
Amye Bensenhaver, co-founder of KOGC, rejected that interpretation in written responses to questions from The Sentinel about Miller’s presentation.
“No. I think it was a procedural red herring,” she wrote.
Open records challenges are brought against the agency, not its individual members, Bensenhaver said. She also noted that neither party raised the issue; the Supreme Court did so on its own.
Bensenhaver questioned why attorneys for the Fish and Wildlife Commission did not raise the issue much earlier if failing to name the commissioners individually was a procedural defect that could have ended the case.
“The legal challenge is to the agency’s (commission’s) actions – not each individual member,” she wrote.
Where Miller and Bensenhaver agreed was that the majority opinion points requesters toward litigation when they believe public officials are deliberately using private accounts or devices to conceal public business. They differed sharply on whether that offers a meaningful remedy.
Miller also warned regents what that remedy could mean for them.
“I wanted to point that out to you because nobody wants to see their name on the other side of the ‘v,’” he said. “So, that remains an option for anybody who's upset that they didn't get certain records.”
Bensenhaver called the premise “probably the most laughable part of the opinion.”
“Yes, the majority of the justices urge lawsuits to expose misconduct,” she wrote. “But the intent of the Open Records Act is to expedite a resolution. Not protracted litigation.”
The dispute between KOGC and KDFWR began with an open records request in August 2021 and took nearly five years to reach a final decision from the Kentucky Supreme Court.
The Open Records Act provides for administrative appeals to the attorney general as a means of resolving disputes without first going to court. Bensenhaver questioned how many requesters, including newspapers, have the resources to hire attorneys and litigate for years.
“It’s an old adage in open government law, ‘The value of information is partly a function of time,’” she wrote. “Litigation stretching [through] the years and exhausting the resources of aggrieved requesters and newspapers is a formula for disaster.”
The possibility of litigation led several regents to ask how that could affect their own communications.
Regent Emily Roark, an attorney, prompted Miller to clarify whether personal emails and text messages that are not subject to disclosure under the Open Records Act could still be obtained through discovery in a lawsuit.
They could, Miller said, adding the Supreme Court discussed the possibility of a judge conducting an in camera review, in which the court privately examines records before determining what should be produced.
“So, the answer is yes,” he said. “But that in and of itself can be a little unsettling – to have to produce your personal text messages.”
Regent Thomas Waldrop pressed on the apparent tension between that process and the court’s conclusion that communications maintained exclusively on personal accounts or devices were not subject to the Open Records Act.
Regent Glycon Lee “G.L.” Ovey, also an attorney, said the ruling appeared to leave those questions to be resolved case by case when litigation occurs.
“For example, if we get sued, first thing they’re going to ask for is our text messages,” Ovey said before raising the practical question of what regents should do with those messages.
“So, I just wanted to point that out,” Miller reiterated, “that [the Supreme Court decision] doesn’t mean that everybody is free and clear to use their personal phone because of this point that the court made.”
The discussion then turned to whether university ties to a personal cellphone could affect the status of records stored on it.
Staff Regent David Wilson asked whether a personal phone effectively becomes a work phone when an employee receives a university stipend covering part of the cost. Miller said that could raise Fourth Amendment questions and make ownership of records more difficult to determine when someone uses a personal Gmail account or text messaging application.
“Just so you know, I do not text anything,” Wilson said. “I just pick up the phone and call.”
Miller then addressed what would happen if regents voluntarily provided communications from their personal accounts or devices in response to an open records request.
“I do want to tell you, as Regents, that when you might get an open records request, and when you provide your text messages to me – even though I’m not asking for them – or your personal email account information, then they are a state record because I have them,” he said.
“So, I’m not going to ask for your personal phone information per this Supreme Court ruling, but once you give it to me, now that is disclosable.”
Bensenhaver called that a “hint hint, nudge nudge” moment.
“He’s telling them not to volunteer the responsive records they may have in order to save the university unwelcome heartburn,” she wrote. “As long as he doesn’t have them, they are not public records and all is right with the world. Don’t ask, don’t tell.”
With the legal discussion winding down, Board Chair David Meinschein noted that the authority of the Board of Regents rests with the board collectively rather than individual members, a distinction Miller said was part of the Supreme Court’s reasoning in concluding individual KDFWR commissioners were not themselves public agencies.
Meinschein also returned to Miller’s earlier reference to “malevolent” actors.
“Here’s what I know from our operations: there’s nothing ‘malevolent’ that occurs. Everything’s in good faith,” he said.
Bensenhaver said public accountability cannot depend solely on an assumption that government officials will always act in good faith.
“If there were no ‘malevolent’ public actors, there would be no need for open records,” she wrote.
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