As Kentucky legislators harshly reacted to our position on proposed legislation aimed at vastly narrowing the scope and application of the Open Records Act by redefining the term “public record” to exclude “any electronic communications . . . using a private cell phone or other private electronic device that is paid for with private funds or . . . a  nongovernment electronic mail account,” we reached out to other states that participate in the National Freedom of Information Coalition to determine how the issue is addressed elsewhere.

Before we share the results, we offer some background information.

Long before HB 302 was voted out of the March 21 Senate State and Local Government Committee meeting on the fast track to passage -- with little discussion and no opposition -- the Bluegrass Institute Center for Open Government criticized the attorney general’s open records decision referenced in that astonishingly brief Senate committee discussion. In our 2017 report, “Shining the Light on Kentucky’s Sunshine Laws: A Proposal for Revision of Kentucky’s Open Meetings and Open Records Laws,” we observed:

“The pervasive use of electronic devices to conduct public business has created a more extensive electronic ‘paper trail’ of agency action.  Discussions of public business, whether conducted on publicly or privately owned devices and accounts, clearly qualify as public records under KRS 61.870(2) as documentation ‘regardless of physical form or characteristics’ that is ‘prepared, owned, used, in the possession of or retained by a public agency.’"

These records are subject to properly promulgated laws that govern their retention and management but have proven more elusive than their hard-copy counterparts. Officials, including the Kentucky Attorney General, are reluctant to acknowledge their status as public records. Their failure, or refusal, to recognize this legal reality and to adjust agency conduct accordingly represents one of the gravest current threats to both the open meetings and open records laws and government accountability generally.”

If revision was needed at all, we recommended that the term be revised to expressly include documentation relating to public business conducted by public officials and employees on publicly and privately owned devices and accounts.

We cited three opinions issued by courts in other jurisdictions construing narrower definitions of the term “public record” to include public officials’ communications about public business on private devices: Competitive Enterprise Institute v. Office of Science and Technology, 827 F.3d 145 (D.C.Cir. 2016) (recognizing that the federal Freedom of Information Act, 5 U.S.C. 552, reaches work-related emails in the private email accounts of agency officials); City of San Jose v. Superior Court of Santa Clara County; Ted Smith, Real Party in Interest, No. S218066 (California Supreme Court, March 2, 2017) (holding that when a city employee uses a personal account to communicate about public business, the communications are public records and may be subject to disclosure under the California Public Records Act); Nissen v. Pierce County, 2015 WL 5076297 (determining that a public employee's text messages sent on his private cell phone were public records under the Washington Public Records Act).Since we issued our report, another state court has ruled on the question. In Toensing v. Attorney General of Vermont, issued in October 2017, Vermont’s highest court determined that records produced or acquired in the course of agency business are public records under that state’s Public Records Act, regardless of whether they are located in private accounts of state employees or officials or on the state system.

Analyzing these cases in a later blog, we noted that the courts often apply ”a rule of constructive agency possession.” These courts conclude that “an agency always acts through its employees and officials. If one of them possesses what would otherwise be agency records, the records do not lose their agency character just because the official who possesses them maintains them on a private device.”

Further, the courts recognize that the purpose of public access laws is not served if an official or employee can “deprive the citizens of their right to know what his department is up to by the simple expedient of maintaining his departmental emails on an account in another domain.”  It makes as much sense to say that the official “could deprive requestors of hard-copy documents by leaving them in a file at his daughter’s house and then claiming that they are under her control.”

Because the issue has weighed heavily on the Bluegrass Institute Center for Open Government since its creation in March 2017, we moved quickly to voice our opposition to HB 302.And, as noted, we reached out to access advocates in other states who participate in the National Freedom of Information Coalition. We ask whether the participant’s state, or any state of which the participant was aware, codifies the right of a public official to treat his or her communications about public business on privately owned devices as nonpublic record, i.e., redefines public record to exclude these communications.

We received immediate responses from six states, three of them geographically close neighbors.

The Ohio News Media Association directed us to the Ohio Attorney General’s Yellowbook for the proposition that “it is the content of the message, not the ownership of the device, that determines whether something is a public record.”

The Tennessee Coalition for Open Government advised us that in that state “the test is whether the communication is ‘made or received pursuant to law or ordinance or in connection with the transaction of official business by any governmental agency.’ The device it was sent on (personal or a government-owned) has been recognized by our Office of Open Records Counsel not to matter.”

Indiana’s representative explained that the state’s Public Access Counselor has consistently maintained that “When a public official avails himself of any communication medium, whether it is phone, email or text message, he is availing himself of the Indiana access laws when communicating in his official capacity. The entire account is not subject to the APRA – some of the communications are private and personal. But those messages containing public business are potentially disclosable.”

We also heard from Florida’s representative who, echoing the other responding states, observed that  “any records relating to public business are public record whether they are on a state computer or a private computer.”

Washington’s representative indicated that his state “is similar to the others you've heard from already. The PRA statute does not specifically mention private devices or accounts, but case law is absolutely clear on the point, and the Attorney General's online reference and training materials track the case law, in saying that it doesn't matter whether a record is on a private account or device, or if a record is in the possession of an individual in their car or home -- if it contains ‘information relating to the conduct of government or the performance of any governmental or proprietary function’ and was "prepared, owned, used, OR retained by any state or local agency" (or by any employee or official or contractor of such agency in the course of their duties) then it is a public record subject to disclosure.”

And Oregon’s NFOIC representative cited that state’s statute which provides that “any records relating to public business are public record whether they are on a state computer or a private computer.”

This small sampling suggests a national trend that stands in stark contrast to Kentucky legislators’ recent attempt to restrict the public’s right of access to records memorializing the transaction of public business on privately owned devices. We hold fast to the position that HB 302 flies in the face of the overwhelming weight of legal authority.

We are hopeful that the Senate’s March 22 decision to remove HB 302 from the consent calendar signals a realization that it should proceed with far greater caution in considering legislation that impacts the public’s right to know.