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

1) Introduction

This published decision addresses the scope of Kentucky’s Open Records Act (ORA), KRS 61.870 et seq., when official communications occur through private email accounts and private cell phones of volunteer members of a state commission. The Kentucky Open Government Coalition, Inc. (KOGC) sought emails and text messages among identified current/former commissioners and two legislators, expressly stating the request was not limited to communications on government-owned accounts or devices.

The Kentucky Department of Fish and Wildlife Resources Commission (the Commission) produced records located on agency-controlled systems, asked members to provide any responsive items from their private accounts, and—citing an Attorney General open-records decision—took the position that communications “solely in the possession of individuals on their personal devices” were not “public records” under the ORA. The litigation thus presented two central issues:

• Classification issue: Are commissioners’ private emails/texts about commission business “public records” of a “public agency”?
• Enforcement/remedy issue: If such records exist on private devices, can a court compel the Commission to obtain and disclose them in an ORA action?

2) Summary of the Opinion

The Supreme Court of Kentucky held that 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 purposes of the ORA and therefore need not be disclosed in response to an open-records request.

The Court reasoned that, although the Department and the Commission are “public agencies,” individual volunteer commission members are not themselves “public agencies” under KRS 61.870(1). Records not in the custody or control of the public agency—i.e., retained only in personal accounts/devices—are not subject to compelled disclosure through an ORA production order against the agency.

The Court also emphasized that concerns about officials “subverting” the ORA by using private devices cannot justify judicial expansion of statutory definitions; rather, the Court suggested alternative litigation tools (including civil suits and discovery with potential in camera review) where there is a good-faith basis to allege deliberate evasion.

3) Analysis

3.1) Precedents Cited

• Fox v. Grayson (Ky. 2010) — Used for constitutional history: the Court relied on Fox to frame the evolution of Ky. Const. § 93 and to support the majority’s conclusion that “members of boards and commissions” are constitutionally distinct from “inferior state officers” after the 1992 amendment.
• Sibert v. Garrett (Ky. 1922) — Cited as an example of pre-1992 treatment of commission members under § 93, illustrating why the post-1992 “and” matters to the majority’s status analysis.
• City of Champaign v. Madigan (Ill. App. Ct. 2013) — Invoked to support a “collective-body” conception: individual members’ records are not records of the public body unless the officials are acting collectively (e.g., quorum context). The Court noted the Madigan distinction for texts exchanged during an official meeting.
• In re Silberstein (Pa. Commw. Ct. 2011) — Used to reinforce that an individual without authority to act alone for the government entity does not create “public records” of that entity merely by communicating; the majority relied on the “lack authority / not ratified” logic to resist treating private emails as agency-held records.
• Zink v. Commonwealth, Dep't. of Workers' Claims, Labor Cabinet (Ky. App. 1994) — Cited for ORA purpose (“citizens’ right to be informed as to what their government is doing”) and to suggest much inter-member exchange could be characterized as preliminary, falling within KRS 61.878(1)(i) and (j) (drafts, notes, preliminary recommendations/memoranda). Notably, the majority did not decide exemptions item-by-item; it used Zink primarily to contextualize the marginal public value of nonbinding exchanges.
• Tracy Press, Inc. v. Super. Ct. (Cal. App. 2008) — Cited on procedure and due process: where a requester seeks an order effectively compelling a private individual to produce private emails, that individual may be a necessary party; an ORA action against the agency alone cannot supply notice/opportunity to be heard for third parties.
• Attorney General open-records decision: In re: Brian Mackey/Dep't of Fish and Wildlife, 21-ORD-127 (2021) — Not a judicial precedent, but central to the factual backdrop: the Commission relied on it for the proposition that privately possessed documents are not “owned by the Commonwealth” and thus not within the ORA’s disclosure obligations.

3.2) Legal Reasoning

The majority’s reasoning turns on two linked statutory predicates in the ORA: (1) whether the record is a “public record,” and (2) whether it is prepared/owned/used/possessed/retained by a “public agency” (KRS 61.870(2)).

1. Step 1: Identify the public agency. The Court readily accepted that the Department and the Commission qualify as “public agency” under KRS 61.870(1)(b), (g), and (j). But it rejected the argument that each commissioner, individually, is a “public agency” under KRS 61.870(1)(a) (“Every state or local government officer”), reasoning that Ky. Const. § 93 (as amended in 1992) distinguishes “inferior state officers” from “members of boards and commissions.”
2. Step 2: Tie the record to the public agency’s custody/control. The Court emphasized that the ORA obligates agencies to disclose records within agency systems (e.g., “available on the Department’s servers and its computers”), including private-email communications that were actually transmitted into those systems (the opinion gives an example of private emails sent to the Commissioner’s public email account). But communications that remain exclusively on members’ private phones/accounts are, in the Court’s view, outside the Commission’s control, and therefore not “public records” held by the agency.
3. Step 3: Reject “constructive possession” based solely on membership/volunteer connection. The Court refused to treat commissioners’ privately retained communications as “constructively” possessed by the Commission merely because the messages involve commission duties. It reinforced this by describing commissioners as unable to “act alone and authoritatively” by text/email; the Commission acts officially in meetings, committees, advice, and approvals under KRS 150.023.
4. Step 4: Address evasion concerns through remedies other than redefining ORA coverage. The Court acknowledged concerns that officials could evade disclosure by using private devices, but held that speculative abuse cannot justify judicial expansion of “public agency” or “public record.” Instead, it suggested that if there is a good-faith basis to suspect deliberate subversion, a requester can file civil litigation alleging conspiracy to subvert the ORA and use court-supervised discovery, including potential in camera review. It also highlighted due process and necessary-party principles when disclosure would effectively compel private individuals (including the named legislators) to produce private correspondence.
5. Separation-of-powers frame. The Court repeatedly presented its holding as restraint: any change—e.g., requiring government email for volunteers, prohibiting private-device government correspondence, or deeming each commission member a “public agency”—belongs to the General Assembly, not judicial “legislating from the bench.”

3.3) Impact

• Narrowing of ORA reach for off-system communications: The decision establishes a clear Kentucky rule that, at least for volunteer commission members, communications about public business that remain exclusively on private devices/accounts are not obtainable via an ORA enforcement action against the agency.
• Procedural shift for requesters: Requesters may need to (a) target records that actually reside in agency repositories, (b) pursue parallel requests to other offices, and/or (c) bring separate civil litigation (with discovery) where there is a supportable allegation of deliberate evasion—particularly when third-party private correspondence is implicated.
• Compliance pressure on agencies (policy, not mandate): The Court expressly signaled best practices: issuing state email accounts to those acting on the agency’s behalf and policies requiring their use. While not legally compelled by this holding, the opinion invites executive-branch administrative reforms to avoid recurring “missing records” disputes.
• Potential tension with transparency norms: The dissent argued the majority’s approach effectively encourages routing communications away from agency-controlled systems. Future cases may test the boundary conditions the majority left open, such as communications during official meetings (a scenario flagged via City of Champaign v. Madigan) or circumstances where an agency has policies asserting control over communications even on private devices.

4) Complex Concepts Simplified

• “Public agency” (KRS 61.870(1)): The ORA applies to defined governmental entities (departments, commissions, boards) and certain officers. The majority held volunteer commission members are not “state officers” under Ky. Const. § 93’s post-1992 structure, so they do not individually become “public agencies.”
• “Public record” (KRS 61.870(2)): A record is “public” if it is prepared/owned/used/possessed/retained by a public agency. The majority read this to require an agency-custody link; materials exclusively on private devices are not “held” by the agency.
• “Custodian” (KRS 61.870(6)): The ORA’s disclosure duties run through a “custodian” with “custody and control” of public records. If the underlying item is not a public record of a public agency, the private holder is not an ORA “custodian.”
• “Unreasonable burden” (KRS 61.872(6)) and privacy exemptions (KRS 61.878(1)(a), (s)): These are standard ORA exceptions typically requiring fact-specific balancing. The majority’s holding largely bypassed exemption analysis by concluding the items sought were not public records of the agency to begin with.
• Necessary parties / due process: Courts generally avoid orders that effectively compel non-parties to surrender private communications without notice and an opportunity to be heard. The Court cited Tracy Press, Inc. v. Super. Ct. to underscore that dynamic where private individuals’ correspondence is at stake.
• In camera review: A judge privately reviews disputed documents to decide if an exemption applies. The majority suggested this as a tool in a different kind of civil action (discovery-driven), not as a mechanism to convert private-device records into ORA records.

5) Conclusion

This decision announces a definitive Kentucky “custody-and-status” limitation on ORA enforcement: communications retained exclusively on volunteer commission members’ private devices and private accounts are not “public records” of the agency and cannot be compelled through an ORA action against the Commission alone. The Court framed the ruling as statutory fidelity and separation-of-powers restraint, while acknowledging transparency concerns and pointing to legislative reform and alternative civil remedies as the proper avenues for addressing intentional evasion.