Kentucky Supreme Court Kentucky Lantern photo by Liam Niemeyer

The Kentucky Supreme Court has agreed to hear oral arguments in a case that could clarify how the state’s open records law covers public officials’ text messages.?

The court will review a Court of Appeals decision in a lawsuit between Kentucky Department of Fish and Wildlife Resources Commission and nonprofit Kentucky Open Government Coalition. Last October, the appellate court ruled that messages on personal cell phones are public records when they are created or used by government officials for government business.

In 2021, the coalition requested emails and text messages from current and former members of the commission. However, the commission did not furnish the records, prompting the coalition to file a complaint in Franklin County Circuit Court. There, a judge ruled that the “emails concerning business of the Commission sent to or received via the Commission members’ private email accounts” were public records but “text messages concerning Commission business sent to or received on the Commission members’ private cell phones were not subject to disclosure.”?

Amye Bensenhaver, a co-founder of the Kentucky Open Government Coalition, said the public has a right to know how public servants conduct business — no matter if they are employees, volunteers or one of Kentucky’s highest ranking officials.?

“We have a right to know,” she said. “These are our records.”?

Bensenhaver added that she doesn’t “think there’s any question that legally we are on absolutely solid footing.” As it is now, the Kentucky Open Records Act covers records in physically different formats, whether that be a written document or an electronic one.?

“By and large, our courts have been very, very, very, very strong on open government and the rights invested in the public under the open records law, but we have new players on the court,” she said.”?

The Kentucky Open Records Act was created in 1976 and established the right to access public records. Public agencies subject to the law include a range of organizations and individuals, like small local government boards and large public universities.

The lawsuit against Fish and Wildlife also inspired legislation that ultimately failed in the General Assembly this year. Open government advocates, including the Open Government Coalition, warned that House Bill 509 would add loopholes to the open records law for public officials to avoid disclosing public records on personal devices, such as text messages.?

The primary sponsor, Rep. John Hodgson, R-Fisherville, said the Court of Appeals decision prompted his bill and it was an attempt to modernize Kentucky’s open records laws.?

The bill gained passage in the House, but died in the Senate during the final days of this year’s legislative session because it was not brought to the floor for a vote. Republican Senate President Robert Stivers told reporters at the time he had “no doubt” discussion about open records would come up during the interim session.?

Democratic Gov. Andy Beshear also expressed support for the bill. He argued that it would have allowed more records to be disclosed by requiring that public officials have an agency email account that could be easily searched.

Bensenhaver said the portions of the bill that would have prevented an agency from searching private accounts or devices and solely relying on agency-owned email accounts were problematic. It also does not matter how a record is created — like an email or a text — but the contents of the record that involve public business.?

“We don’t need to change our law,” she said. “Our law works until it’s misrepresented and lied about.”?

A spokesperson for the Fish and Wildlife department did not immediately return a request for comment.?

Oral arguments have yet to be scheduled as of Friday.