September 1, 2021

Public Business on Private Cell Phones

It is well established that text messages of public officials, on cell phones paid for with public funds, are subject for inspection and production under the Kentucky Open Records Act. It is equally as established that a public official’s private messages, on private cell phones are not subject to inspection under open records. However, with the increased use of cell phones for quick and easy communication, what happens when a public official conducts public business through a private cell phone?

A recent opinion from the Office of the Attorney General highlights the muddy water of public officials using personal cell phones to conduct public business.

In 21-ORD-145, WEKU argued that the City of Richmond violated the Open Records Act by failing to produce a city commissioner’s text messages from both her city-owned and private cell phones.

KRS 61.870(1)(a) includes every state and local government officer under the definition of “public agency.”

The Office of Attorney General declined to extend a broad reading of KRS 61.870(1)(a) to mean that all text messages sent or received by a state or local government officer is subject to inspection.

The opinion reads, “[b]ut following that logic, it would mean that every single document in the city commissioner’s possession, including purely personal documents, such as personal bills and emails with family, would be public records. Such an expansive interpretation of the meaning of “public record” would be untenable and could not have been intended by the General Assembly.” [1]

In this case, there was no evidence that the city commissioner was acting in her official capacity, or otherwise conducting public business. The Office of the Attorney General found:

“In sum, the text messages on the city commissioner’s city-owned phone are public records, but the text messages on her private phone are not. The distinction is that public funds are spent to procure the former, whereas public funds are not spent to procure the latter. As was the case when 15-ORD-226 was issued, this Office recognizes the gap that distinction leaves in the Open Records Act, and the potential it leaves for government officers to conduct governmental business on devices not subject to public inspection. But the inverse world is no more satisfying, in which every text message a governmental officer sends or receives on any device becomes a ‘public record’ simply by virtue of being in his or her possession. KRS 61.870(2) as currently enacted does not provide for a middle ground.”[2]

The Office of the Attorney General issued a warning to public officials that the lack of such middle ground should not be used as an avenue to subvert the intent of the Kentucky Open Records Act. It warned that “[u]ntil the General Assembly provides further guidance on this question, public agencies and their employees are still admonished to refrain from using personal devices to conduct governmental work with the intent to shield their conduct from public inspection.”[3]

KLC will continue to provide open records guidance as it evolves. Please contact the Municipal Law Department at KLC with any questions at 800.876.4552.


1 21-ORD-145