A recent Kansas Supreme Court decision has put public records custodians on notice — under the Kansas Open Records Act they must provide electronic copies of electronic records.
“This ruling clarifies that the Kansas Open Records Act ensures access to open public records of all types and in all formats,” said Attorney Max Kautsch, president of the Kansas Coalition for the Open Government, who also argued the case. “As the Court put it, KORA ‘obliges the agency‘ receiving a request for electronic records “to faithfully duplicate the public record in all its respects….” (emphasis in original).”
The decision stems from a 2019 case in which Kelly Roe, shortly after resigning from the Phillips County Hospital board, sent a KORA request for a number of records in their “native format,” to include hospital documents, board meeting minutes with accompanying handouts and packets, Excel and PowerPoint presentations and files, slides, newsletter, CEO reports of purchases and employment evaluation, and documents regarding a CT scanner and ultrasound machine. The requested materials were mostly related to at least seven different Board meetings.
The hospital insisted it was not required to provide electronic versions of the requested records but offered hard-copy printouts or to allow Roe to view the records at the hospital.
Roe filed complaints with both the Kansas Attorney General’s office and the Phillips County District Court.
The district court agreed with Roe ruling that records must be provided in the format requested if the public agency has the capability of doing so.
The Kansas Court of Appeals disagreed and overturned the ruling saying the law simply did not require the hospital to provide the records in electronic format.
The appeals court noted that on Sept. 26, 2019, the attorney general’s office — after investigating — concluded “KORA contains no language requiring records be provided in their native format. A public agency retains the discretion to determine the format in which the records are produced.”
Producing thousands of pages of hard-copy of electronic records is a fairly routine tactic public agencies use to avoid transparency, and something Kautsch noted in a press release.
“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 dramatically easier to search and store, not to mention less expensive for taxpayers and better for the environment,” Kautsch said.
Not so fast
The case eventually made its way to the Kansas Supreme Court, where on Jan 6, a unanimous decision with one justice, K.J. Wall, not participating, reversed the appeals court stating “… under the plain language of KORA, (the) Hospital must provide copies of these records in the format it stores them.”
The appeals court, according to the opinion authored by Justice Evelyn Wilson, “correctly determined that the plain meaning of ‘copies,’ ‘allows for reproductions which may involve numerous formats or mediums.'” However, Wilson wrote, the appeals panel critically missed the implication that any “‘accurate reproduction'” of a public record must mirror the content of that record unless specifically exempted.
“Here, if we focus on just an Excel spreadsheet, it can have embedded components that include at least some formulas,” Wilson wrote. “Such formulas provide information to show more than just numbers in a cell, but also how those numbers are generated. Hardcopies simply will not work to reproduce accurately such an integrated animal. Plainly, hard copies do not “embed” anything. The only accurate reproduction of an electronic file is a copy of the electronic file, which can easily be provided by, for example, email or thumb drive.”
Kautsch lauded the decision.
“There can now be no doubt that public agencies must be prepared to disclose not only computer files like the Excel spreadsheets my client sought in this case, but any electronic record, including audio and video,” Kautsch said. “The Court also established 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.’ Other options would include file-sharing software.
“In 2023, it is no longer a reasonable option for public agencies to delay the inevitable by using traditional mail to disseminate electronic records.”
The Sentinel has been conducting its own KORA investigation concerning policies and costs for providing public records at the county level and found a disturbing pattern of failure to adhere to KORA. Those findings will be published shortly.