Kentucky's Capitol in Frankfort. (Ryan Van Velzer / KPR )Government transparency advocates say a recent Kentucky Supreme Court decision spells trouble for the state’s open records act — the law that helps residents keep tabs on what elected officials and government agents are up to.The 4-2 deci sion stems from a case involving the Kentucky Open Government Coalition, which filed a lawsuit in 2021 against the Kentucky Department of Fish and Wildlife Resources Commission alleging the government agency violated the Open Records Act by refusing to turn over communication records kept on private email and cell phones.Transparency advocates argued the records were public and should be disclosed. But the state’s high court disagreed.The Kentucky Center for Investigative Reporting’s Jake Ryan talked about the decision with First Amendment attorney Mike Abate — who argued the case before the Supreme Court for the Kentucky Open Government Coalition. Abate also often represents LPM News in media legal matters.Listen to the conversation in the player above. The transcript below is edited for length and clarity.Jake Ryan: Before we discuss how this recent Supreme Court case will impact government transparency, want to go back to the beginning. This all started after the nonprofit group Kentucky Open Government Coalition sued the state's Department of Fish and Wildlife Resources Commission after the government agency refused to hand over some public records. Just get us up to speed on what that debate centered on.Mike Abate: Yeah, so the key question in this case was whether public officials who communicate about the public's business on their cell phones or on a private email account like a Gmail account have to disclose those records when a request is made to the agency for public records. The agencies had taken the position that they don't own those devices or email accounts where the communications happened, so they shouldn't have to turn them over. And as you say, we brought a lawsuit because we thought that was absolutely incorrect, and so we brought a suit to challenge that.JR: And then late last month, the Kentucky Supreme Court ruled in a 4-2 decision that agencies like the Department of Fish and Wildlife Commission can keep that public business secret on their personal devices. Justice Kelly Thompson wrote the majority opinion. What was his reasoning that you read in the opinion?MA: Yeah, well, it's a little bit nuanced, actually. I think what we have to say here, first of all, he focused on the commissioners themselves, and he said these commissioners are not themselves a public agency, because they're volunteer commissioners who are appointed by the governor to serve in this role. And he looked at the language of the Kentucky constitution and said they don't qualify as officers of the commonwealth, and the open records law applies to certain defined agencies, which include state and local officers. So he said these folks themselves are not officers, so they don't qualify as public agencies, and you can't make the commission — which is a public agency — you can't make them go to the cell phones of their volunteer commissioners and get records from them, even if they were about public business. That's what the Supreme Court ruled. Now, you know, obviously we're disappointed in that. We don't think that was the right decision, and causes a lot of problems downstream, but that is what the court said.JR: Now, what problems does this cause downstream? Like, what are the ramifications of this?MA: Well, the first and most obvious problem is it's going to invite people to take communications they don't want the public to see and do them by text message, do them by, you know, other kind of messaging apps, do it by private email, so that they can avoid having to turn over records to the public about what they're doing. We think that makes terrible policy. We think that's not what the law intended, and we don't think that's how the law should have been interpreted, but the court has reached that conclusion.So, you know, the concern for us now is in the future, if somebody just wants to avoid scrutiny, it's pretty easy to do that. You know, in fact, most of these officials, if they pull out their phone to communicate. Could easily click on one app to send an email you know, on a server run by the agency, or click on another app to text about it and take it through a completely offline channel.This post is updated. ...read more read less