In 2015, Kentucky’s then Attorney General Jack Conway issued a decision in which he concluded that the “Louisville Water Company did not violate the Open Records Act in not providing cell phone communications on the private personal devices of its employees.” Conway came to this conclusion reluctantly, noting that the definition of a public record in Kentucky is one that is “prepared, owned, used, in the possession of or retained by a public agency.”

Conway noted “cell phone communications, such as calls and text messages, on the private cell phones of its employees are not within the possession of LWC. Accordingly, LWC did not violate the Open Records Act in withholding cell phone communications on the private devices of its employees.” So, as a matter of definition, the records don’t qualify as public records.

But Conway went on to note:

“This office notes, however, that a document created using public funds stored or otherwise hidden on a private cell phone retains its status as a public record and will still be subject to the Open Records Act. While acknowledging the limitations of the existing legal framework to address communications carried out on private cell phones, this office admonishes public employees against using private cell phones to carry out public work in an attempt to shield such communications from the purview of the Open Records Act.”

At this juncture, it may be worth having a quick remedial Civics discussion. The Attorney General does not make the Public Records law. He merely interprets it. In this regard he acts like an umpire. The Kentucky Legislature makes the law, and had the power to amend it. In light of this reality, one would think that a legislature interested in transparency would read the 2015 AG decision and amend the law to correct this gaping loophole. From a policy perspective if a record is generated in the course of a public’s office business, and it concerns the public office’s official duties, it really shouldn’t matter where it was created or resides. And allowing this “private” property exception is essentially an invitation to public officials to conduct public business on their private devices to keep the public in the dark. So any conscientious legislator would make sure to address this right?

Well, sort of. Kentucky State Senator Damon Thayer is introducing an amendment to proposed House Bill 302 which addresses the AG decision. But Senator Thayer’s amendment would enshrine the loophole as part of the Kentucky Open Records Act. According to Senator Thayer “I think it’s time to codify [the AG decision].”

There are so many things wrong with this it is difficult to know where to begin. But I will try:

  1. It’s sneaky. H.B. 302 ostensibly addresses reorganizing the Public Protection Cabinet. It had nothing to do with the Public Records Act until Senator slid in the amendment. It is the equivalent of a look away pass in a basketball game. Fortunately, however, enough public access advocates didn’t got for the fake.
  2. It’s an abdication of responsibility. Please see the Civics discussion above. The Kentucky Legislature is not required to amend legislation to conform to an Attorney General decision. It’s like asking the Chef not to put cheese in the daily omelet special and being told “I can’t, since the server said it has cheese.” The AG applied the law as written. The legislature has the power to change it. Senator Thayer needs to read his job description.
  3. It is an invitation to abuse. I have practiced in the area of public access for nearly 30 years. There are plenty of exceptions to the Public Records Act that stand in the way of the public’s right to know. Loopholes that will allow public officials to hide even more information is the last thing we need.

This amendment is a bad idea and terrible policy. It needs to go away.