Kentucky Supreme Court Ruling Weakens Open Records Access on Private Devices
A new ruling leaves some public business on private devices outside Kentucky’s Open Records Act.
A public decision rarely begins with a vote.
By the time a board, commission, fiscal court, school board, or state agency meets in public, much of the real work may already be done. Questions have been asked. Concerns have been raised. Drafts have moved back and forth. Officials have talked through options, counted support, tested language, and shaped the choice that later appears on an agenda.
That work matters because it is public work.
In Kentucky, citizens are supposed to have a way to examine that work. The Open Records Act exists because government does not belong to the people who hold office. It belongs to the public. The statute says “free and open examination of public records is in the public interest” and that exceptions must be strictly construed, even when disclosure causes inconvenience or embarrassment to public officials.
But last week, the Kentucky Supreme Court drew a new line around public access.
In a case involving the Kentucky Department of Fish and Wildlife Resources Commission, the Court ruled that emails and text messages held only on individual commissioners’ private phones or private email accounts are not public records under Kentucky’s Open Records Act.
It means that public business conducted through private channels may now be harder for citizens, journalists, watchdogs, and local communities to reach. It means the public may be able to see the final vote, but not the communications that shaped it. And it means Kentucky lawmakers, state agencies, local governments, school boards, commissions, and public bodies now face a choice.
They can close the gap.
Or they can let public business drift further out of public view.
A records request exposed the private-device loophole
The case was Kentucky Department of Fish and Wildlife Resources Commission v. Kentucky Open Government Coalition, Inc.
The Kentucky Open Government Coalition requested communications between members of the Fish and Wildlife Commission and state legislators. Some records were produced. But the Commission refused to produce certain emails and text messages that existed only on individual commissioners’ private devices or private accounts.
The question before the Court was narrow, but the consequences are broad: Are communications related to public business still public records when they are held by individual public officials on private phones or email accounts?
The Court’s majority said no, at least in this context.
The majority reasoned that individual commission members are not themselves “public agencies” under the Open Records Act. The Commission, acting as a body, is a public agency. But the private phones and private email accounts of individual commissioners are not records held by the agency itself. Therefore, the agency did not have to retrieve and produce those communications.
That is the legal distinction.
The practical effect is simpler: if public officials discuss public business on private devices, the public may have no ordinary Open Records Act pathway to see those messages.
The final vote may be visible while the decision-making disappears
The majority opinion tried to draw a line between official action and individual communication.
When the Commission meets, votes, and acts as a body, those records remain public records. But when individual members communicate separately, even on matters connected to their public duties, the majority said those communications do not automatically become agency records.
This is where the ruling becomes dangerous.
Public business does not only happen at the moment of a vote. Decisions are often shaped before the meeting. Public pressure is often managed before the agenda is published. Policy language can be negotiated before anyone gavels a meeting to order.
If those conversations happen through official accounts, citizens have at least some path to request them. If those conversations happen through personal phones or private emails, this ruling may place them outside ordinary reach.
That does not require a conspiracy. It does not require a secret plot. It only requires habits that are already common: a text instead of an email, a private account instead of an official one, a quick side conversation instead of a preserved public record.
In a government system already strained by low visibility, short public comment windows, fast-moving legislation, and complicated local boards, that matters.
The dissent warned that public business could move out of reach
Justice Shea Nickell dissented, joined by Justice Michelle Keller.
The dissent warned that the majority’s approach makes too much turn on where a record is stored and who physically possesses it. In the dissent’s view, when a public official, public employee, agent, or volunteer creates or receives a record concerning public business, the public nature of that record does not disappear because it sits on a private device.
That distinction matters because the Open Records Act was built to serve the public, not to reward technical evasions.
The danger is not only that some records will be missed. The danger is that officials now have a roadmap.
If public business conducted on official systems is searchable, but public business conducted on private phones is not, then private devices become a tempting place for public decisions to move.
That is why this ruling belongs in a democracy stress log. It weakens the public’s ability to see how decisions are made. It shifts power toward officials who control the channels of communication. And it places more burden on ordinary citizens to prove what they cannot see.
This is a school board, fiscal court, and commission problem
It would be a mistake to treat this as a narrow dispute over one state commission.
Kentucky government is full of boards, commissions, fiscal courts, school boards, committees, public authorities, special districts, and volunteer public bodies. Many of them are made up of people who may not have official government phones. Some may not have official email addresses. Some may conduct public business through the same devices they use for family texts, church messages, work calls, and personal email.
That is exactly why clear rules matter.
Consider the kinds of decisions Kentuckians may need to examine:
A school transportation crisis.
A jail contract.
A zoning decision.
A public health response.
A library board policy.
A police department oversight issue.
A state commission appointment.
A fiscal court discussion involving public money.
A local board’s communication with an outside advocacy group.
A public agency’s coordination with state lawmakers.
In each case, the public interest is not limited to the final vote. The public interest includes how the decision was shaped, who influenced it, what concerns were raised, what alternatives were considered, and whether officials acted in the public interest.
If those communications move into private channels, the public record becomes thinner.
And when the public record becomes thinner, accountability becomes weaker.
The Court left the fix to lawmakers and public agencies
One important part of the majority opinion should not be missed.
The Court said that if Kentucky wants a different rule, the remedy lies with the General Assembly or with executive agencies and public bodies themselves.
The majority noted that lawmakers could change the statute. They could prohibit government-related correspondence on private devices. They could require official email accounts for public officials, board members, and commission members. They could define commission members as public agencies for purposes of the Open Records Act.
Agencies and local governments could also act without waiting for the legislature. They could provide official accounts. They could require public business to be conducted through those accounts. They could adopt records-retention policies. They could train board and commission members. They could make the public’s right to know part of basic government practice.
That means this ruling is now a policy choice.
Every public body in Kentucky can decide whether it will preserve public business in public systems or allow public work to continue through private channels.
This was not Kentucky’s first warning
This issue did not appear out of nowhere.
In 2024, House Bill 509 attempted to address public business conducted through electronic communications. The bill would have required agencies to provide email accounts to officers, employees, board members, or commission members and would have prohibited the use of other email accounts for public business.
But open-government advocates warned that versions of the bill also risked creating loopholes, especially if agency obligations were limited to records stored on agency-owned devices or agency-designated accounts.
The question was not only whether officials should have official accounts. The question was whether public business could be kept public regardless of the device used.
That fight now returns with more urgency.
Kentucky does not need a weak fix that gives the appearance of transparency while preserving private-device loopholes.
It needs a rule that follows the work, not merely the device.
If a communication concerns public business, the public should not lose access simply because the official used a personal phone.
A public-records gap becomes a public-accountability gap
Democratic erosion does not always look dramatic.
Sometimes it looks like a procedural distinction. Sometimes it looks like a definition. Sometimes it looks like a records request that turns on whether a message was stored in the right place.
But the effect is real.
When public records access narrows, the people lose leverage. Reporters lose tools. Community groups lose evidence. Parents lose answers. Taxpayers lose visibility. Local residents lose the ability to reconstruct what happened when something goes wrong.
And once the burden shifts to the public, the gap widens.
The majority opinion suggested that if a requester has a good-faith basis to believe officials are deliberately subverting the Open Records Act by using private devices, the requester may be able to file a civil lawsuit and seek discovery under court supervision.
That may sound like a remedy.
For most Kentuckians, it is not.
A records request is something an ordinary citizen can file. A lawsuit is expensive, slow, intimidating, and legally complex. If the practical answer is “sue them,” then transparency becomes less available to the people who need it most.
The Open Records Act works only if it remains usable.
Kentucky needs a records rule that follows the work
Kentucky now needs a serious public-records fix.
That fix should do at least five things.
First, it should require public agencies, boards, commissions, committees, and local public bodies to provide official email accounts for members who conduct public business.
Second, it should require public business to be conducted through official systems whenever possible.
Third, it should make clear that communications concerning public business do not lose their public character solely because they were created, sent, received, or stored on a private device or private account.
Fourth, it should require preservation of public-business communications, including texts and electronic messages, when they concern agency work.
Fifth, it should give ordinary requesters a practical way to obtain records without forcing them into costly litigation.
Public agencies do not have to wait for Frankfort. Local governments can adopt their own policies now. School boards can adopt them. Fiscal courts can adopt them. Public commissions can adopt them. State agencies can adopt them.
The ruling creates a gap.
Kentucky’s public bodies can decide whether to use it.
What Kentuckians can do
Ask your state representative and senator to support a real Open Records Act fix.
The fix should follow public business, not just public devices. The question is simple: should a record concerning public business remain reachable when an official uses a private phone or email account?
Ask your local public bodies to adopt official-communications policies now.
Fiscal courts, school boards, library boards, planning commissions, public health boards, and special districts can require official accounts for public business without waiting for a statewide fix.
Ask whether board and commission members have official email accounts.
If they do not, ask why not. If they do, ask whether they are required to use them for public business.
Support Kentucky open-government watchdogs and local journalism.
The Kentucky Open Government Coalition, Kentucky Press Association, Louisville Public Media, Kentucky Lantern, and other local newsrooms help preserve the public’s ability to see what government is doing.
Keep filing records requests.
Even after this ruling, Kentucky’s Open Records Act still matters. Use it. Learn it. Share what you find. Public access weakens when people stop asking.
A private phone should not become a public blind spot
A private phone should not become a public blind spot.
Kentuckians do not need access to an official’s personal life. They do need access to public business conducted by people who hold public power.
That is the line that matters.
If a board member texts about a family dinner, that is private. If a commissioner texts about public policy, public money, public appointments, public contracts, public enforcement, or public agency decisions, that communication belongs in a different category.
The people of Kentucky should not have to guess whether public decisions were shaped in places they cannot see.
They should not have to file a lawsuit to find out whether public officials used private channels to conduct public work.
And they should not have to accept a government where the vote is visible, but the path to the vote disappears.
This ruling did not end the fight over open records in Kentucky.
It made the next step unavoidable.
Direct sources
Kentucky Supreme Court opinion: Kentucky Department of Fish and Wildlife Resources Commission v. Kentucky Open Government Coalition, Inc.
https://appellatepublic.kycourts.net/api/api/v1/publicaccessdocuments/be3bf0c674e23fceccf794b87a5a8d5c79674d830d0901e4a944a9799bcd6ac2/download
Kentucky Open Records Act, KRS 61.871
https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=23058
Louisville Public Media: “Kentucky Supreme Court rules officials can hide public business on personal devices”
https://www.lpm.org/news/2026-04-23/kentucky-supreme-court-rules-officials-can-hide-public-business-on-personal-devices
Lexington Herald-Leader: John Cheves coverage of ruling
https://www.kentucky.com/news/politics-government/article315511098.html
Kentucky Lantern coverage
https://kentuckylantern.com/2026/04/23/officials-can-hide-texts-emails-on-private-devices-from-records-requests-state-supreme-court-rules/
Kentucky Attorney General Open Records and Open Meetings resources
https://ag.ky.gov/Resources/orom/Pages/default.aspx
Kentucky Open Government Coalition
https://kyopengov.org/about
Kentucky Press Association legal resources
https://kypress.com/legal-resources/
Associated Press coverage of HB 509, 2024 open-records debate
https://apnews.com/article/396c18e564f314a21b21c59949f9711a
Kentucky General Assembly, HB 509, 2024 Regular Session
https://apps.legislature.ky.gov/record/24rs/hb509.html
ACLU of Kentucky, Government Accountability and Transparency
https://www.aclu-ky.org/issues/government-accountability-and-transparency/
Reporters Committee for Freedom of the Press, Kentucky Open Government Guide
https://www.rcfp.org/open-government-guide/kentucky/