The dispute arose when the Kentucky Open Government Coalition filed an open records request with the Department of Fish and Wildlife Resources Commission seeking all emails and text messages sent between commission members, acting commissioners, and two state representatives from June 2020 onward. The request explicitly noted it was not limited to government-owned devices or accounts.
The Commission produced approximately 400 documents from its own records but declined to produce communications stored on the private devices of individual commission members. The Commission relied on an Attorney General opinion stating that documents solely in the possession of individuals on personal devices are not owned by the Commonwealth and therefore fall outside the scope of the Open Records Act.
The Franklin Circuit Court granted partial summary judgment to both sides, ordering the Commission to produce emails concerning commission business but exempting text messages based on an unreasonable burden and privacy invasion. The Court of Appeals reversed the trial court’s categorical exclusion of text messages, holding that both emails and texts were subject to production.
In a decision authored by Justice Thompson, the Kentucky Supreme Court reversed in part and affirmed in part. The court held that individual commission members do not qualify as a public agency under the statute because they are distinct from state officers and lack the authority to bind the commission through individual communications.
The court reasoned that because the members are volunteers who cannot act alone, their private texts and emails are not "prepared, owned, used, in the possession of or retained by a public entity." Consequently, these records are not constructively public records in the possession of the commission.
The court acknowledged concerns that officials might use private devices to evade transparency but stated this issue could not justify reclassifying private documents as public ones. The court noted that if there is evidence of deliberate subversion, the proper remedy is a civil lawsuit for conspiracy rather than an open records action.
The opinion concluded that the General Assembly, not the courts, is responsible for altering the Open Records Act to address these technological challenges. The court affirmed that the Commission properly disclosed all responsive records in its possession and dismissed the action against the commission.