By Amye Bensenhaver
Kentucky Open Authorities Coalition
Very last week Legal professional Basic Daniel Cameron issued a third open up data determination determining that — without having regard to their character, goal, or content material — “text messages despatched and acquired on privately-owned units, for which no public cash have been used, are not ‘public records’ below KRS 61.870(2).”
This time, Cameron mentioned that the legal professional general’s business experienced “consistently found” that messages on privately owned devices are not community history. In support, he cited 21-ORD-146 21-ORD-127 15-ORD-226.
Admonishing community staff members “to chorus from making use of privately owned devices,” Cameron concluded that “KRS 61.870(2), as at present enacted, does not consist of text messages on privately owned equipment inside of the definition of ‘public document,’” and affirmed Louisville Metro Law enforcement Department’s denial of The Courier Journal’s open up documents request.
Prospects are we will shortly see an explosion in the use of privately owned products by public officers and workforce to perform community enterprise. The public’s right to know will be the 1st casualty of Cameron’s anything at all but “consistent” acquiring.
Jack Conway’s eleventh-hour choice problems in 2015
It is real that on his past working day in office in 2015, Lawyer Standard Jack Conway requested what remained of his non-benefit employees to concern an open information selection aimed at crippling that correct to know. It is also genuine that no benefit staffer would sign the choice.
Conway concluded that communications relating to public business enterprise that are done by community officials and employees on privately-owned units are not obtainable underneath the regulation since individuals documents are not “possessed” by the general public agency they provide.
Conway’s 2015 decision dismissed equally the expansive definition of the time period “public record” and decades of precedent that had guided the lawyer general’s interpretation of the legislation.
Elementary to that precedent was the recognition that “[i]n the end, it is the mother nature and objective of the doc, not that put wherever it is kept, that establishes its status as a public record.”
(Conway’s 2015 final decision was cited by Sen. Damon Thayer in 2018 as the basis for his sick-fated proposal to exclude “emails, texts or phone calls on products compensated for totally with non-public funds and which do not entail governing administration email accounts” from the broadly worded definition of the term “public record” in the open data law.)
Why Conway was improper
Conway (and Thayer) dismissed an ever-escalating entire body of legislation outside Kentucky declaring that “an company constantly functions by its staff and officers. If 1 of them possesses what would normally be agency information, the documents do not eliminate their agency character just since the official who possesses them” maintains them on a non-public product.
The lynchpin of this rule of “constructive company possession” is the comprehending that the intent of community accessibility laws is not served if an official or personnel “can deprive the citizens of their appropriate to know what his department is up to by the very simple expedient of maintaining his departmental e-mails on an account in a further area.” It helps make as much sense, the reasoning goes, to say that the formal “could deprive requestors of challenging-duplicate documents by leaving them in a file at his daughter’s residence and then saying that they are under her regulate.”
Like Cameron, Conway discouraged the use of personal equipment in conducting community company, but equally left the doorway open for popular abuse. General public officials and staff members wishing to evade scrutiny — whether or not as a result of their records or their conferences — acquired a inexperienced light-weight to do so as a result of the use of privately owned units.
Sounder minds prevail — fixing the damage completed
Recognizing the danger to general public access that Conway’s 2015 determination represented, the open up information workers inside of the attorney general’s place of work subsequently attempted to limit the decision’s dangerous effect.
Contrary to Cameron’s assert that the attorney normal constantly adopted Conway’s disastrous 2015 open data decision, culminating in the three 2021 selections issued by Cameron himself in the past couple months, Attorney Common Andy Beshear repudiated Conway’s 2015 open documents conclusion in a series of selections.
• In December 2017, Beshear issued a choice in which he determined that the College of Kentucky improperly permitted an personnel to perform community enterprise on his non-public electronic mail account by automated forwarding of all messages on his general public account to the personal account.
Beshear characterized this observe as “the functional equal of conducting general public small business entirely on a personal e mail account” and declared that the College “systematically unsuccessful in its duty to effectively sustain its community documents.”
• In February 2018, Beshear’s office environment adopted this situation when it held that an Erlanger city formal improperly carried out community business on her AOL account and unsuccessful to keep people e-mails. In so performing, the workplace again observed a systematic failure to appropriately manage community records.
• In 19-ORD-011, the OAG inched closer to overruling Conway’s determination by declaring that communications relating to a proposed ordinance, conducted by a Park Hills metropolis councilman on a personal e mail account taken care of on public tools, constituted community information less than the open information law.
The disputed e-mail, which ended up submitted to the OAG for private inspection, confirmed that the councilman “used his non-public electronic mail account with the intent to protect the communications from the public” in the belief that he would get and “use” extra candid suggestions to revise the ordinance and therefore secure town council aid.
Relying on open up documents decisions issued ahead of and following Conway’s aberrant 2015 decision, the January 2019 decision concluded that since documents “used” by an company are subject to the law “regardless of where by they are positioned or whose ‘personal property’ they are thought of,” the emails in dispute were being “public records subject matter to general public disclosure until an exception applies.”
• Lastly, in 19-ORD-206, Beshear relied on 19-ORD-011 to reverse Conway’s 2015 open up records selection, observing that 19-ORD-011 “established that a town council member had applied his ‘private e mail account with the intent to protect the communications from the community.’ In holding that responsive e-mails in his non-public account had been general public documents, and for that reason subject matter to disclosure unless a statutory exception used, this business office emphasised, ‘A history that is “used’ by a community agency is a general public report of that agency under the definition of the expression “public record” observed at KRS 61.870(2).’ 19-ORD-011, p. 4 (citing 12-ORD-178). The instantaneous charm provides no basis to depart from this reasoning. Insofar as 15-ORD-226 indicates otherwise, *that determination is hereby modified*.”
Cameron ignores inconsistent open records choices
In the open up data enchantment that yielded the badly reasoned 21-ORD-127, Cameron was reminded that the OAG experienced reversed 15-ORD-266 in 19-ORD-206.
Not only did Cameron overlook the truth that 15-ORD-266 was no more time excellent legal authority — which was meticulously introduced to his awareness — in 21-ORD-127, he has absent on to cite the discredited 2015 decisionas proof that the Business of the Attorney Normal has “consistently found” that communications on privately owned equipment are not public data for open documents functions, no matter of their character, reason, or content material.
A question of priorities
At best, Daniel Cameron’s posture reflects sloppy lawful investigate. At worst, it demonstrates calculated misrepresentation. Either way, it is the public that have to now issue irrespective of whether government transparency is, in fact, 1 of Daniel Cameron’s priorities.
Amye Bensenhaver is a retired assistant legal professional common, open up govt advocate, and blogger for the College of Kentucky Scripps Howard First Modification Centre. Along with Jennifer P. Brown, previous editor of the Kentucky New Period and publisher of an on line information web site in her hometown of Hopkinsville, she aided establish the Kentucky Open up Government Coalition to offer a voice for all citizens who help government transparency and accountability.