Kentucky ORA “Agency-Custody” Rule: Private Emails and Texts of Volunteer Commission Members Are Not “Public Records”

I. Introduction

In Kentucky Department of Fish and Wildlife Resources Commission v. Kentucky Open Government Coalition, Inc. (Ky. Apr. 23, 2026), the Supreme Court of Kentucky addressed whether the Kentucky Open Records Act (ORA), KRS 61.870 et seq., compels a state commission to produce emails and text messages about commission business that reside exclusively in the private email accounts and on the private cell phones of individual commission members (including former members).

The requester, the Kentucky Open Government Coalition (KOGC), sought “all emails and text messages” between various commission members and two legislators, expressly stating the request was not limited to government-owned accounts or devices. The Kentucky Department of Fish and Wildlife Resources Commission (the Commission) produced documents in its own possession and asked commission members to supply any responsive communications from their personal accounts; none were supplied. KOGC sued, alleging a willful ORA violation. The case thus presented a modern transparency problem: whether “public business” conducted through private communications channels remains reachable through an ORA request directed to the agency.

II. Summary of the Opinion

The Court affirmed in part, reversed in part, and remanded, ultimately directing dismissal of the action. The majority held:

  • Private records in the exclusive ownership and control of individual commission members and former members— on their private cell phones and in their private email accounts—are not “public records” held by a “public agency” for ORA purposes.
  • Individual volunteer commission members are not themselves a “public agency” under KRS 61.870(1), and therefore are not ORA “custodians” of “public records” simply by virtue of their public service.
  • Concerns about officials evading the ORA by using private devices do not authorize courts to expand statutory definitions; the remedy lies with legislative change or (if misconduct is suspected) a separate, properly-pled civil action in which necessary parties are joined and discovery mechanisms can be used.

A dissent would have rejected the majority’s “possession-only” approach, treating work-related communications as public records regardless of storage location and emphasizing agency action through agents.

III. Analysis

A. Precedents Cited

1. Kentucky ORA purpose, disclosure bias, and exemptions

  • Zink v. Commonwealth, Dep't. of Workers' Claims, Labor Cabinet, 902 S.W.2d 825 (Ky. App. 1994): The majority invoked Zink for the ORA’s informational purpose (“what their government is doing”) and to underscore that many communications by individual members may resemble preliminary materials, pointing to exemptions in KRS 61.878(1)(i) and (j). While Zink is not a “private-device” case, it supplied a transparency rationale the Court used to frame what counts as governmental action.
  • Commonwealth v. Chestnut, 250 S.W.3d 655 (Ky. 2008); Ky. Bd. of Exam'rs of Psychs. and Div. of Occupations and Pros., Dep't for Admin. v. Courier-Journal and Louisville Times Co., 826 S.W.2d 324 (Ky. 1992); Kentucky New Era, Inc. v. City of Hopkinsville, 415 S.W.3d 76 (Ky. 2013); Cape Publ'ns, Inc. v. Univ. of Louisville Found., Inc., 260 S.W.3d 818 (Ky. 2008); Hardin Cnty. Schools v. Foster, 40 S.W.3d 865 (Ky. 2001): These decisions appear principally in the dissent to emphasize (i) the ORA’s pro-disclosure posture, (ii) the case-specific nature of exemptions like “unreasonable burden” and privacy balancing, and (iii) that agencies bear the burden to justify withholding. Their collective role in the opinion text is to highlight a competing methodology: classification as a “public record” first, then exemption analysis second.
  • City of St. Matthews v. Voice of St. Matthews, Inc., 519 S.W.2d 811 (Ky. 1974): Discussed in the dissent as background to ORA’s enactment and pro-disclosure spirit; it supports the broader transparency narrative but does not control the majority’s statutory-definition holding.
  • Beckham v. Bd. of Educ. of Jefferson Cnty., 873 S.W.2d 575 (Ky. 1994): Cited in the dissent to note that individuals whose privacy is implicated may seek to prevent disclosure. It underscores the dissent’s preference for tailored protection (redaction/in camera review), not categorical exclusion based on storage location.

2. Out-of-state authority on whether individual members’ records are “public records”

  • City of Champaign v. Madigan, 992 N.E.2d 629 (Ill. App. Ct. 2013): A central support for the majority’s “collective-body” concept. The Illinois court treated aldermen/council members’ individual records as outside the open records act because the body acts only with a quorum, while still recognizing that texts exchanged during an official meeting could be public records to prevent subverting open meetings requirements. The majority used this to justify distinguishing (i) records produced when the commission acts as a body from (ii) informal exchanges by members acting individually.
  • In re Silberstein, 11 A.3d 629 (Pa. Commw. Ct. 2011): The majority relied on this to reinforce that an individual commissioner’s private emails may not be public records where the individual lacks authority to act alone and the messages are not adopted/ratified by the agency.
  • Tracy Press, Inc. v. Super. Ct., 80 Cal. Rptr. 3d 464 (Cal. App. 2008): Used by the majority to address remedies and procedure: if a requester seeks an order compelling a private individual to produce private emails, that individual may be a necessary party; due process concerns arise if non-parties’ private correspondence is compelled without notice and opportunity to be heard.
  • City of San Jose v. Super. Ct., 389 P.3d 848 (Cal. 2017) and Bradford v. Dir., Emp. Sec. Dep't, 128 S.W.3d 20 (Ark. Ct. App. 2003): These are cited in the dissent to support the contrary rule: content and purpose (public business), not storage location, should control.

3. Kentucky constitutional and structural precedents

  • Fox v. Grayson, 317 S.W.3d 1 (Ky. 2010) and Sibert v. Garrett, 197 Ky. 17, 246 S.W. 455 (1922): The majority used these cases to describe the historical meaning of Ky. Const. § 93 and to support the view that, after the 1992 amendment, “members of boards and commissions” are constitutionally distinct from “inferior state officers.” This distinction helped the Court conclude that individual commission members are not “state officers” for KRS 61.870(1)(a).
  • Williams v. Ky. Dept. of Educ., 113 S.W.3d 145 (Ky. 2003): Cited in the dissent to argue agencies act through agents and employees—thus, records created by commissioners within their duties should be treated as agency records regardless of device ownership. The majority implicitly rejected this agency/agent framing as a basis to expand ORA’s “public agency” definition.

4. Attorney General guidance

  • In re: Brian Mackey/Dep't of Fish and Wildlife, 21-ORD-127, 2021 WL 3233032 (2021): The Commission cited this Attorney General opinion for the proposition that documents solely on personal devices are not owned by the Commonwealth and thus not “public records.” The majority’s holding aligns with that conclusion in this commission-member context.

B. Legal Reasoning

1. Statutory text as the controlling boundary

The Court anchored the case in statutory definitions: “public record” means documentation “prepared, owned, used, in the possession of or retained by a public agency” (KRS 61.870(2)), and ORA duties attach to a “public agency” (KRS 61.870(1)). The majority treated “held by a public agency” as a practical custody/control concept: if the agency does not own or control the device/account and the records remain exclusively owned/controlled by private individuals, they are not agency-held public records.

2. “Public agency” does not include individual commission members

The majority’s most novel move is constitutional-structural: it read Ky. Const. § 93 (as amended in 1992) to create two distinct categories—“inferior state officers” and “members of boards and commissions”—and then used that to limit the ORA’s definition that includes “Every state or local government officer” (KRS 61.870(1)(a)).

From there, the Court concluded individual volunteer commission members are not “state officers” and cannot independently qualify as a “public agency” under the remaining definitional categories in KRS 61.870(1)(b)-(k). Because they are not a “public agency,” they are not a statutory “custodian” of public records under KRS 61.870(6), even if they have personal custody/control of their own messages.

3. The “collective action” premise: members cannot bind the Commission alone

The Court emphasized that commission members “can take no actions individually” that constitute Commission action; the Commission acts through meetings/quorum, advising, and approvals described in KRS 150.023. This mattered because the Court viewed individual texts/emails as not being “communications of the Commission” in the way agency-server records might be, and thus not “prepared/used/retained” by the Commission as an entity.

4. Separation of powers and “loophole” concerns

The majority openly acknowledged the policy fear that officials could “evade disclosure” by using private phones, but it treated that fear as a legislative problem: courts may not “legislate from the bench” by expanding “public agency” to include individual commission members or by declaring private-device communications per se public records. The Court suggested alternative responses:

  • Legislative reform (e.g., mandate state accounts for volunteers; prohibit government business on private devices; redefine commission members as “public agencies” for ORA).
  • Different litigation vehicle if deliberate ORA subversion is suspected—file a civil lawsuit alleging conspiracy to subvert ORA, use discovery, and allow in camera review under court supervision.
  • Joinder/due process: courts should not compel disclosure of private correspondence from non-parties (including the named legislators) without notice and opportunity to be heard.

C. Impact

  • Narrower ORA reach for distributed governance: Kentucky agencies facing ORA requests cannot be ordered (in a straightforward ORA enforcement suit) to obtain and produce communications that remain exclusively on private accounts/devices of volunteer commission members.
  • Greater importance of agency-controlled systems: The decision strongly incentivizes executive agencies to issue official email accounts (and potentially devices) to members/volunteers and to adopt mandatory-use policies—otherwise, large categories of work-related communications may never enter agency custody.
  • Shift in requester strategy: Requesters may focus on (i) records that reached agency systems (copied to agency officials, forwarded, stored, printed), and (ii) alternative causes of action (with proper party joinder) when they believe private-device use is a deliberate evasion tactic.
  • Doctrinal tension: The dissent’s approach—content-focused and agency/agent-based—sets up a clear interpretive divide that may invite legislative response or future refinement in cases involving employees (not volunteers), contractors, or situations where agencies effectively require private-device use.

IV. Complex Concepts Simplified

  • “Public record” (KRS 61.870(2)): Not every document related to public work is automatically reachable; under the majority, it must be sufficiently tied to and held by a “public agency” through preparation/ownership/use/possession/retention attributable to the agency as an entity.
  • “Public agency” (KRS 61.870(1)): The ORA binds governmental units (departments, boards, commissions). The majority holds individual volunteer commission members are not, by themselves, “public agencies.”
  • Custodian (KRS 61.870(6)): The “custodian” is the person with official responsibility for public records of a public agency; the majority rules a commissioner’s personal custody of private texts/emails is not custodianship of “public records.”
  • Quorum/collective action: The majority treats the commission’s legally operative acts as those taken as a body; individual member communications do not equal commission action.
  • Unreasonable burden (KRS 61.872(6)) and privacy (KRS 61.878(1)(a), (s)): These are statutory grounds to withhold otherwise-public records. The majority’s holding largely bypasses these exemptions by deciding the contested private-device records are not “public records” of a “public agency” at all.
  • In camera review: A judge privately examines disputed records to decide what must be disclosed; the majority suggests this is more appropriate in a properly pleaded civil action with discovery and necessary parties, not an ORA enforcement suit against only the Commission.

V. Conclusion

This decision establishes a clear Kentucky rule: communications about government business that remain exclusively on volunteer commission members’ private devices and private accounts are not “public records” held by a “public agency” under the ORA, and an ORA enforcement action against the agency cannot be used to compel their production. The Court framed transparency concerns as real but for the General Assembly (or for different litigation with proper parties and discovery tools), not for judicial expansion of the ORA’s definitions. As a practical matter, the opinion pressures agencies to modernize recordkeeping by ensuring official communications channels exist and are used—otherwise, substantial swaths of government-related communication may remain outside routine ORA access.