January 24, 2015

By Facsimile (502.564.6801)
Hon. Jack Conway
Office of the Attorney General
Commonwealth of Kentucky
700 Capitol Avenue, Suite 118
Frankfort, Kentucky 40601-3449
Re:

January 22, 2015 Denial Of Open Records Requests Directed To The

Louisville and Jefferson County Metropolitan Sewer District

Dear Hon. Conway:

For nearly three years, the Board of Directors of the Louisville and Jefferson County
Metropolitan Sewer District (MSD) has been engaged in a protracted and bitter negotiation
with its employees and their chosen representatives, LiUna Local 576, regarding a new union
contract and how grievances should be administered thereunder. As the former Chairman of the
Board, I attempted to break the impasse in August 2014 by advocating for a super-majority
arbitration provision. The Vice-Chairman of the Board, Tom Austin, has argued that my efforts
were improper. He also strenuously argued that such a super-majority provision would be
illegal. Thankfully, your office addressed the dispute this week and issued an opinion finding
that Mr. Austins position was incorrect and that MSD is not prohibited from entering a union
contract with a super-majority grievance administration procedure.
After several months of public debate on this issue (which included lots of media
coverage) and following my efforts to defeat Mr. Austin in the Boards November 24, 2014
Board Chair election, Mr. Austin channeled his frustration into an ethics complaint filed against
me on December 5, 2014. I maintain that the complaint is retaliatory and is not meant to actually
redress any alleged or perceived ethical violation. To defend myself and prepare for an eventual
hearing on Mr. Austins complaint, I filed a request under the Open Records Act on December
17, 2014. I requested copies of all text messages between Mr. Austin (the Boards Vice-Chair)
and MSDs Executive Director, Greg Heitzman. On January 20, 2015, I filed another request
under the Act, requesting copies of emails between Tom Austin and any other person or
persons, including Greg Heitzman or any individual board member or members, regarding: (a)
the ethics complaint; (b) any of the facts contained in the ethics complaint; and/or (c) any
comments that I have ever made to the press.
Members of the MSD Board and its Executive Director are public officials, with offices
created by KRS Chapter 76. These public officials routinely communicate by e-mail and text
message regarding official business. The Executive Director owns his cell phone, where text
messages are stored; Board members use private cell phones and e-mail addresses, and are not
issued public MSD addresses. Even though these messages are stored on private devices and

servers, they constitute public records pursuant to KRS 61.870(2) (defining a public record
as all documentation regardless of physical form or characteristics, which are prepared,
owned, used, in the possession of or retained by a public agency).
On January 22, 2015, the majority of my Open Records requests were denied. As to the
text messages, I was advised that MSD had no obligation to search Mr. Austins private phone
for text messages. Because the Executive Director privately owns his cell phone, MSD
maintained it had no obligation to maintain records thereon and that Mr. Heitzman had
subsequently deleted all such messages.1 As for e-mails between Mr. Austin and others
regarding the public matters listed above, my request was denied because MSD does not have
access and control of its Board members' computers and/or cell phones as those computers/cell
phones are not issued by MSD.
These denials were improper. There is no exemption from disclosure in the Open
Records act for public records that are maintained on public officials private devices or servers.
Though my requests would have been mooted by a dismissal of the ethics complaint, or would
be mooted by a finding of no just cause to continue, as of this writing the Board is pressing ahead
with Mr. Austins complaint. Thus, to prepare for the eventual hearing, I am appealing the
denial of my requests to your office pursuant to KRS 61.880(2) (having already exhausted my
obligations pursuant to KRS 61.880(1) by attempting to resolve the impasse directly with MSD).
I therefore respectfully request that your office issue an opinion as to this dispute,
resolving whether the deletion of the aforementioned text messages was proper and further
resolving whether public officials text and e-mail messages, stored on private devices and/or
routed through web-based e-mail services or privately-owned servers, are subject to the Open
Records Act. Following your opinion, I request that your office assist in efforts to require
MSDs compliance with the Act.
Thank you for the time and effort this appeal will entail, and please let me know if I may
be of any assistance.
Sincerely,
s/ James Craig
James Craig
Phone: 502.614.5962
E-mail: jcraig@craighenrylaw.com

Enclosures: Open Records Requests and Denials

CC: Paula Purifoy, MSD General Counsel

1

Though unrelated to the Open Records appeal, two points are noteworthy here. First, as Chairman, I approved the
use by Mr. Heitzman of his personal phone and an MSD stipend to pay for his usage. But I did not approve any
effort or policy to exempt messages contained on that phone from the Open Records Act, nor could I. Second, it is
unclear when those text messages were deleted, and whether they were deleted after unflattering media coverage of
a racist text message by Mr. Austin during the week of December 15, 2014.