Officials’ use of private devices to conduct public business: A serious threat to open government

BIPPS Logo_pick“BYOD,” or “Bring Your Own Device,” is an increasingly common corporate practice in which employees are permitted to conduct business on their personal computing devices. In the private sector, the practice is believed to increase productivity, enhance employee morale, and save on costs.

In the public sector, the same practice threatens the ability of citizens to hold agencies accountable through their records and meetings.

Relying on a legally unsupportable interpretation of the open records law advanced by Kentucky’s attorney general, some public officials in the state labor under the delusion that they can avoid scrutiny by conducting public business on their personal devices.

Until this question is resolved by the courts in a published opinion recognizing that the existing definition of the term “public record” extends to all communications concerning public business generated by public officials and employees —  whether transmitted on publicly issued or privately owned devices —  or the definition of “public record” is amended to avoid the attorney general’s preternaturally narrow interpretation, this grave threat to open government will persist.

In the context of records reflecting discussions of public business on private devices, Attorney General Jack Conway first articulated this reductive interpretation of the term “public records” on his final day in office. He directed the release of 15-ORD-226, two months after the statutorily mandated due date for his decision, obviating any possibility of internal staff discussion of the issue.

Quoting KRS 61.870(2), which states that “public record” means “documentation, regardless of physical form or characteristics, which is prepared, owned, used, in the possession of or retained by a public agency,” he grossly oversimplified the issue by suggesting that because “cell phone communications, including calls or text messages, made using a private cell phone that is paid for with private funds, are not prepared by or in the possession of a public agency,” they are not “public records.”

In so doing, he ignored the expansive definition of the term “public record” and years of precedent that had guided his office’s interpretation of the law recognizing that  “In the end, it is the nature and purpose of the document, not the place where it is kept, that determines its status as a public record.”  00-ORD-207.

Such communications concerning public business may reside on private premises, or in this case,  private devices but the public official or employee who owns the device, “holds [the records] at the instance of and as custodian on the [agency’s] behalf.”

Attorney General Andy Beshear compounded this error in 16-ORD-262, concluding that communications exchanged by agency officials with agency counsel on private devices were not “possessed or used” by the agency.  The communications related to agency business and — although ultimately deemed not useful by agency counsel — were reviewed by counsel and therefore used by the agency.

Again, the attorney general referenced the applicable law but ignored it.

As noted, Kentucky’s courts have not yet addressed this issue, but courts in other jurisdictions have, applying a rule of constructive agency possession and concluding that “an agency always acts through its employees and officials. If one of them possesses what would otherwise be agency records, the records do not lose their agency character just because the official who possesses them” maintains them on a private device.

These courts recognize that the purpose of public access laws is not served if an official or employee “can deprive the citizens of their right to know what his department is up to by the simple expedient of maintaining his departmental emails on an account in another domain.”  It makes as much sense to say that the official “could deprive requestors of hard-copy documents by leaving them in a file at his daughter’s house and then claiming that they are under her control.”

Yet this is precisely what the Kentucky attorney general would have us believe.

There is no greater threat to the public’s right to know than this fallacious interpretation of the law. Followed to its logical conclusion, it eviscerates both the open records and meetings laws and extends to public officials and employees a license to conduct secretly all public business on private devices without fear of accountability.

Amye Bensenhaver, one of the foremost experts on Kentucky’s nationally recognized open records and open meetings laws, is director of the Bluegrass Institute’s Center for Open Government.

Bensenhaver, winner in 2016 of the Scripps Howard First Amendment Center Award, spent 25 years as an assistant attorney general during which she wrote nearly 2,000 legal opinions forcing government entities to operate in the open when too many of them preferred to keep questionable – sometimes even corrupt – activities hidden from public view.