Government Transparency: Private Devices, Public Business?

A recent decision from the Kentucky Supreme Court highlights a developing issue in how public records are understood in the digital age. In Kentucky Department of Fish and Wildlife Resources Commission v. Kentucky Open Government Coalition, Inc., the Court addressed whether communications related to public business, but maintained on private devices or personal accounts, are subject to disclosure under the Kentucky Open Records Act.¹

Potential Questions Still to be Addressed

The ruling does not resolve every question. The Court acknowledged concerns that public officials could conduct public business through private platforms, placing those communications outside the reach of standard open records requests.⁵ However, rather than expanding the statutory definition of public records, the Court indicated that such concerns may require legislative action or, in certain cases, litigation where there is evidence of intentional efforts to evade transparency requirements.⁶

As communication increasingly occurs through text messages, social media, and private messaging applications, the implications for transparency are significant. Public officials now use a wide range of tools to conduct public work, but not all of those communications are necessarily subject to disclosure under current law. The distinction ultimately turns on whether the communication is captured, retained, or controlled by a public agency.

What Does This Mean for John Q. Public?

For members of the public, this creates a practical consideration. Those who want communication to become part of the official record should make a deliberate effort to use—or request the use of—official channels. Directing questions to government-issued email addresses, official websites, or designated contact points increases the likelihood that responses will be documented. When communication occurs through private platforms, a follow-up request for confirmation through an official email or submission to the agency’s records custodian can help ensure it is preserved.

Public agencies share responsibility for maintaining this balance. While informal communication tools offer speed and accessibility, reliance on them without corresponding recordkeeping practices can create gaps in documentation. As technology continues to evolve faster than the legal frameworks governing public records, consistent use of official communication channels—supported by clear policies—remains one of the most effective ways to ensure that public engagement is both responsive and accountable.

Understanding What Qualifies as a Public Record

Under KRS 61.870(2), a public record includes any documentation “prepared, owned, used, in the possession of or retained by a public agency.” This definition carries two key implications. First, custody and control matter—records are more likely to be subject to disclosure when they are maintained within agency systems or on government-issued devices. Second, content and purpose matter—communications that reflect the functions, decisions, or operations of a public agency are more likely to qualify as public records regardless of the platform used.

In practice, communications made on government-issued devices are generally subject to the Open Records Act when they relate to public business. By contrast, communications maintained exclusively on private devices—and not retained by the agency—may fall outside standard open records requests directed at the agency, even when they concern public matters. The distinction turns not on the technology used, but on whether the communication is within the custody or control of the public agency.

The use of personally owned devices—including those reimbursed with public funds—adds further complexity. Reimbursement alone does not convert a private device into a public record system. However, when communications from such devices are retained, used, or incorporated into agency records, they may become subject to disclosure. Agencies that rely on decentralized or informal communication practices therefore risk inconsistencies in recordkeeping and potential gaps in transparency that may ultimately require litigation to resolve.

For the public, it is also important to recognize that communications sent to government officials—such as text messages, emails, or direct messages—may become part of the public record when they relate to government business and are received or retained within agency systems, including government-issued devices. While certain personal information may be protected or redacted, the substance of communications concerning public functions may be subject to disclosure.

A Comparison to Federal Practice

A comparison to federal records law highlights a key distinction in how transparency is applied. Under the Freedom of Information Act, as informed by federal recordkeeping requirements under the Federal Records Act, the defining factor is generally the content and purpose of the communication, coupled with requirements that such records be preserved within official systems.⁷ Federal guidance makes clear that when public officials conduct government business through personal email or private messaging systems, those communications must be captured within agency recordkeeping systems to ensure accountability and accessibility.⁸

High-profile cases, including the use of a private email system by former Secretary of State Hillary Clinton, prompted strengthened guidance emphasizing that the use of private platforms does not remove the obligation to retain and produce records related to official business.⁹

By contrast, Kentucky’s recent decision places greater emphasis on whether a record is within the custody and control of a public agency. Communications maintained solely on private accounts may fall outside standard open records requests unless they are captured within agency systems or otherwise brought under agency control.¹

This divergence illustrates an emerging policy gap: while federal practice attempts to close the loop through mandatory retention, Kentucky’s current framework places greater reliance on agency practices and potential legislative action to ensure consistent transparency.

The Takeaway

Ultimately, the question of whether a communication is subject to disclosure under the Kentucky Open Records Act is less about the device used and more about where the record resides and how it is used.

Communications related to public business that are captured within agency systems are more likely to be accessible, while those maintained exclusively on private platforms may not be and may require litigation to obtain.

For both public officials and citizens, including board and committee members, the practical takeaway is straightforward: when transparency matters, use official channels and ensure that important communications are preserved within agency records. In an environment where technology continues to outpace policy, consistent and thoughtful practices are required by not only officials, but we the people—the public they serve.

Footnotes

1. Kentucky Department of Fish and Wildlife Resources Commission v. Kentucky Open Government Coalition, Inc., Nos. 2023-SC-0524-DG & 2024-SC-0275-DG (Ky. Apr. 23, 2026).
2. Id. (holding that records in the exclusive possession of individual commission members on private devices or accounts are not public records of the agency).
3. Id. (concluding that individual commission members do not independently qualify as a “public agency” under KRS 61.870 and therefore are not custodians of public records for purposes of the Act).
4. Ky. Rev. Stat. § 61.870(2).
5. Kentucky Dep’t of Fish & Wildlife Res. Comm’n, supra note 1 (acknowledging concerns regarding potential circumvention of the Open Records Act through use of private devices).
6. Id. (noting that allegations of deliberate evasion may be addressed through litigation or legislative changes rather than expansion of the statute by the Court).
7. Freedom of Information Act, 5 U.S.C. § 552; Federal Records Act, 44 U.S.C. §§ 3101–3107.
8. National Archives and Records Administration, Bulletin 2015-02: Guidance on Managing Email Records (July 29, 2015).
9. See, e.g., U.S. Department of State Office of Inspector General, Evaluation of Email Records Management and Cybersecurity Requirements (2016) (examining use of private email systems for official business).