KORA victory opens new era of access

Posted January 18, 2023

By Max Kautsch

Earlier this month, the Kansas Supreme Court ushered in a new era of presumed and prompt access to electronic records under the Kansas Open Records Act.

As the Court put it, KORA “obliges the agency” receiving a request for records “to faithfully duplicate the public record in all its respects” when providing copies to a requester. You can read the court’s ruling here.

Here’s how the case unfolded:

Agency refuses to provide electronic records

In Roe v. Phillips County Hospital, the Court considered whether a public agency was required to disclose computer files, specifically, certain Excel spreadsheets, in response to a former board member’s KORA request for those spreadsheets in their native electronic format.

The hospital was only willing to disclose the records by printing paper copies of the information in the spreadsheets appearing on their screens and charging a fee for providing the copies.

The former board member, Kelly Roe, refused to pay for the paper copies, arguing that the hospital had violated KORA by refusing to provide the records in the form in which the agency possessed them. She filed a KORA complaint against the hospital with then Attorney General Derek Schmidt in 2019, and when that office failed to respond within 90 days, she represented herself and sued the hospital in Phillips County District Court.

Attorney General sides with agency

While the case was pending in district court, Schmidt’s office denied the former board member’s complaint, finding that KORA requires the production of electronic records only if the requested record exist only in electronic format.

The AG’s office found that so long as electronic records such as Excel spreadsheets could be printed, the agency could comply with KORA by offering the requester paper copies of the information contained in computer files.

Allowing an agency to dictate the format in which records are disseminated in response to a KORA request would have rendered one of the law’s core tenets, that “public records” are defined as “any recorded information, regardless of form, characteristics or location,” effectively meaningless.

Appeals Court adopts AG’s conclusion

In spite of the AG’s conclusion, the district court ruled in 2020 that the hospital was required to disclose the Excel spreadsheets the former board member has requested, relying in part on a substantial body of Attorney General Opinions finding since the 1980s that records must be produced in electronic format upon request.

But the hospital appealed the district court’s opinion. With the board member representing herself, the Court of Appeals ruled in February of last year that “KORA does not require a public agency to produce electronic public records in the format of the requester’s choice.”

The opinion barely acknowledged an amicus brief in support of the former board member’s position that stakeholders, including the KPA, had filed.

If that ruling had stood, agencies would have been able to comply with KORA requests for computer files simply by printing the screens and charging the public for the paper copies.

Supreme Court steps in

The former board member hired the attorney who had represented the stakeholders in the amicus brief to appeal the ruling to the Supreme Court. After hearing oral arguments in October of 2022, the Court held in January of 2023 that “[t]he plain language of K.S.A. 45-219(a) requires a public agency, upon request, to provide a copy of a public record in the format in which it maintains that record.”

Not only did the Supreme Court reverse the Court of Appeals decision, but it also noted that Schmidt’s office had “reached a conclusion generally different than those expressed in previous AG opinions.”

The Court also implied what agencies must do to comply with KORA in the digital age: public records in an electronic format can “easily be provided by, for example, email or thumb drive.”

As a result, this ruling puts an end to a tactic sometimes employed by public agencies disinterested in transparency to do things like print thousands of pages of emails rather than provide electronic versions that would be substantially easier to search and store.

Audio and video records fair game

Finally, this ruling, combined with a Sedgwick County District Court case involving body camera videos in 2021, makes clear that not only must public agencies be prepared to disclose computer files like the Excel spreadsheets the former board member sought in this case, but also any electronic record, such as audio and video.

In the Sedgwick County case, the Wichita Eagle sought body camera footage related to closed investigations, which was stored electronically. The city denied the request in part because KORA provides that “[a] public agency shall not be required to provide copies of radio or recording tapes or discs, video tapes…or similar audio or visual items or devices ...”

But the court ruled that “K.S.A. 45-219(a) is inapplicable.

“Just because one method of transmitting that data may be by way of a ‘disc’, the fact is that it does not have to be.”

The judge rejected the city’s position because endorsing it would have led to an “absurd result.”  Not only did the court order disclosure of the video in electronic format, it ordered the city to pay the Eagle’s attorney fees.

Both Roe and the Eagle’s case stand for the proposition that electronic records stored on computer, including audio and video, must be disclosed under KORA.

A new era of access indeed!

Max Kautsch is the legal hotline attorney for the Kansas Press Association. He represented Kelly Roe before the Kansas Supreme Court.