(WKYT) – The Kentucky Supreme Court ruled records on Fish and Wildlife commissioners’ private devices and email accounts are not subject to open records requests.
The decision comes after a case involving the Kentucky Department of Fish and Wildlife Resources Commission, where the Kentucky Open Government Coalition made an open records request.
The request sought emails and texts between commission members and others, including former commissioner Rich Storm, deputy/acting commissioner Brian Clark and chairman Karl Clinard, the opinion said.
In August 2021, the court opinion said KOGC asked for confirmation whether the records they received included emails from private devices and addresses since many commission members used their private emails.
“It is undisputed that the Commission members were not provided with governmental email accounts,” the court opinion said.
KDFWR did not hand over communications from private devices or email addresses, according to the court opinion, and argued this documentation is not owned by the state, citing an Attorney General opinion.
KDFWR also claimed that individual members could not conduct any business except in public meetings.
“Therefore, their personal emails and texts were not considered public records to be retained by the Commission,” the court’s opinion said.
The Kentucky Supreme Court ruled that the members are not a public agency, meaning records in their personal possession cannot qualify as public records.
Justice Shea Nickell dissented, claiming the majority opinion “eviscerates” the public’s right to know what the government is doing.
“The majority ultimately conflates and contorts the issue to conclude that records created by agents, officials, or employees of a public agency regarding the public’s business are somehow transformed into private records not subject to the ORA simply because they are located on non-governmental devices or accounts,” Nickell’s dissent read.