24-ORD-246
November 22, 2024
In re: Eric Bunzow/Elsmere City Councilwoman
Summary:
A
member
of
the
Elsmere
City
Council
(“the
Councilwoman”) did not violate the Open Records Act (“the Act”) when
she denied a request that did not seek records prepared, owned, used, in
the possession of, or retained by the Councilwoman.
Open Records Decision
On or about August 31, 2024, Eric Bunzow (“the Appellant”) submitted two
requests to the City of Elsmere (“the City”) pertaining to a social media account on
Facebook identified as “Councilwoman Serena Owen.” First, he requested “a copy of
any and all Facebook messages between” that account and nine named individuals.
Second, he requested “a copy of any and all Facebook people that are blocked on” that
account. Upon receipt of the requests, the City forwarded them to the Councilwoman1
and asked her to provide the requested records to the city clerk because “the City is
not in possession or control of the account.” The Councilwoman responded that there
were no records responsive to the Appellant’s requests.2
On or about October 11, 2024, the Appellant made a third request to the City
for “a copy of the activity log or a public inspection of the activity log” for the Facebook
account “Councilwoman Serena Owen.” The City forwarded the request to the
Councilwoman, who replied that that she would not comply because the Facebook
page was “a personal political candidate page and not a government operated page”
and, therefore, “is not subject to” the Act. This appeal followed.
1
Serena Owen is a member of the Elsmere City Council.
2
The City’s original response indicates that the Appellant also sought copies of the Councilwoman’s
paychecks. However, the Appellant did not submit a copy of his request for paychecks to the Office.
Rather, he submitted the agency’s response, which quotes that request. Because the Appellant did not
submit a copy of his original request for the paychecks, the response to that request is not before the
Office on appeal. See KRS 61.880(2)(a).The Councilwoman did not submit a response to this appeal. Thus, the Office
refers to the Councilwoman’s original denial, stating her “personal Facebook page is
not subject to” the Act. KRS 61.870(2) defines “public record” to include “all books,
papers, maps, photographs, cards, tapes, discs, diskettes, recordings, software, or
other documentation regardless of physical form or characteristics, which are
prepared, owned, used, in the possession of or retained by a public agency.” A record
is a “public record” if it is the property of a public agency. See 24-ORD-118. A record
is the property of a public agency, and is therefore a “public record,” if the agency
owns, possesses, or retains it. Further, a record can become the property of a public
agency if it is used or prepared by the public agency for an official purpose. See, e.g.,
23-ORD-057 (holding a picture on a police officer’s personal cell phone became a
public record when he used it to obtain a witness’s identification of a suspect that was
later used to secure a search warrant). Because communications on web-based social
media accounts are stored on the social media provider’s website and are merely
accessed by its users through a web browser or mobile application, they are not
“owned” or “possessed” by a user. See, e.g., 15-ORD-190 (finding the Kentucky
Department of Education did not own or possess emails stored on local school district-
owned serves even though the Department had an administrative password that
permitted the Department to access the local district’s emails). Nevertheless, social
media communications may be “prepared,” “used,” or “retained by a public agency”
within the meaning of KRS 61.870(2). See 22-ORD-184.
The definition of “public agency” under the Act includes “[e]very state or local
government officer.” KRS 61.870(1)(a). Thus, the Councilwoman is a “public agency”
by virtue of her office. But whether a social media account belonging to a government
officer is the account of a “public agency” can be a fact-intensive inquiry. See 22-ORD-
184 n.3. “[M]any public officials use both a ‘personal’ account and an ‘official’ account[,
and] accounts not in the possession of a [public] agency or for the work [of]
government, including personal accounts, are just that: personal accounts not subject
to the Act.” Id.
In 22-ORD-184, the social media account at issue was a Twitter account titled
“KY Secretary of State Michael Adams,” which was embedded on the homepage of the
Secretary’s official website. Because the account bore the Secretary’s official title and
was embedded on a government website, the Office found the Secretary “prepared,”
“used,” and “retained” the posts “in his official capacity as a state officer,” making
them public records. Id. Here, by contrast, the Councilwoman’s Facebook page bears
her official title but is otherwise described as a “personal page.” Moreover, there is
no evidence that it is embedded in or otherwise linked to any government website.
Likewise, there is no evidence that the account has been used by the Councilwoman
in her official capacity, although it indicates it is a “political candidate” page and the
account bears the Councilwoman’s title. But the account also makes clear that it is apersonal page intended to facilitate her communications as a political candidate. The
Office concludes that such an account is not “prepared,” “used,” and “retained” by the
Councilwoman “in [her] official capacity as a state officer,” making its contents a
public record. Id. Accordingly, the Councilwoman’s Facebook account is not subject to
the Act, and so she did not violate the Act when she denied the Appellant’s October
11 request.3
A party aggrieved by this decision may appeal it by initiating an action in the
appropriate circuit court under KRS 61.880(5) and KRS 61.882 within 30 days from
the date of this decision. Under KRS 61.880(3), the Attorney General shall be notified
of any action in circuit court, but shall not be named as a party in that action or in
any subsequent proceedings. The Attorney General will accept notice of the complaint
emailed to OAGAppeals@ky.gov.
Russell Coleman
Attorney General
/s/ Zachary M. Zimmerer
Zachary M. Zimmerer
Assistant Attorney General
#429
Distributed to:
Eric Bunzow
Serena Owen
3
Because the Councilwoman’s personal Facebook account is not subject to the Act, it is not
necessary to address her assertion that no records responsive to the Appellant’s August 31 request
exist. Even if such records did exist, they are not public records subject to the Act.