Court rules that text messages stored on personal devices are subject to the Open Records Act

In a recent opinion by the Kentucky Court of Appeals, a three-judge panel unanimously ruled in a case that involved the Kentucky Fish and Wildlife Commission (“KFWC”) that “text messages related to [KFWC] business and stored on personal cell phones of its members are public records generally subject to disclosure under the Open Records Act absent an applicable exception.”

In doing so, the court rejected the ruling by the Franklin Circuit Court in the case and departed from prior opinions of the Office of the Attorney General. However, the Court of Appeals panel agreed with the lower court that “emails concerning [KWFC] business that are stored on the members’ personal email accounts qualify as public records subject to disclosure under the Open Records Act….”

Although the Court of Appeals’ decision in this case is not yet final and could still be subject to further judicial review, county elected officials and employees should be mindful of this decision before using their personal electronic devices or personal email accounts for conducting county business.

Counties should also consult with their county attorney regarding changes that may be needed to the county’s communications and records retention policies in light of this decision.