Kentucky Supreme Court Issues Decision on Open Records Law
The Supreme Court of Kentucky issued a significant opinion on April 23, 2026, interpreting the reach of the Kentucky Open Records Act (ORA) in the context of modern communication methods. The case arose after the Kentucky Open Government Coalition requested emails and text messages, including those on private devices, from members of the Kentucky Department of Fish and Wildlife Resources Commission and challenged the commission’s refusal to produce records not in its possession. The court held that records stored solely on private devices or in personal accounts of individual state volunteer board or commission members are not “public records” held by a “public agency” for purposes of the ORA and therefore are not subject to disclosure in response to an open records request.
The court’s reasoning was based on two key principles. First, the court examines whether the entity or individual is considered a “public agency” as defined in KRS 61.870(1). While state and local agencies themselves, such as departments, boards, and commissions, are unquestionably subject to the ORA, individual members of state bodies are not always classified as “public agencies.” Second, the court examines whether that public agency possesses records prepared, owned, used, or retained, as requested, under the ORA. Accordingly, communications created and maintained solely on personal devices or accounts, outside the agency’s possession or control, may not fall within that definition. As a result, communications that exist only on a personal phone or private email account, and are not otherwise in the agency’s possession, may fall outside the scope of the statute.
For cities, the most important takeaway from this decision is not just what the court held, but to whom the holding applies. Under KRS 61.870(1)(a), state and local officers are expressly defined as “public agencies.” This includes mayors, councilmembers, and other local elected officials. For these individuals, the ORA analysis is straightforward: a record maintained or used by a public official in furtherance of public business qualifies as a public record subject to disclosure, regardless of whether it is stored on a personal device or private account. In other words, the use of a personal phone or private email account does not remove a record from the ORA when the individual is a public agency.
By contrast, the court’s decision applies specifically to volunteer members of state boards and commissions, like the Fish and Wildlife Commission at issue in the case. The court emphasized that these individuals are not public agencies, as defined by KRS 61.870, in their individual capacity and cannot act on behalf of the body unless they are convened together as a quorum. Because of that distinction, records held solely by individual volunteer members of a state board on their private devices are not considered records of the public agency. This distinction is critical for local governments. While volunteer boards, such as code enforcement boards or ethics boards, may fall within the court’s reasoning, local elected officials do not.
Overall, this decision underscores the importance of proactive policies at the local level. While certain records on private devices may fall outside the ORA, particularly for volunteer board members, relying on that limitation is not a best practice. Cities should strongly consider ensuring that official business is conducted through city-controlled systems such as government-issued email accounts, or, at the very least, email accounts used for public business separately from private accounts.
The Kentucky League of Cities is excited to offer training on the Kentucky Open Records Act. If interested, please contact us at 800.876.4552.
