When a person requests a copy of an electronic public record under the Kansas Open Records Act, public agencies must provide that copy in electronic format, the Kansas Supreme Court ruled Friday.
This means, for instance, that agencies can’t print off copies of Excel spreadsheets — they must provide the spreadsheets themselves.
“The opinion ushers in a new era of presumed and prompt access to electronic records in Kansas,” said Max Kautsch, the Lawrence attorney who argued the case and president of the Kansas Coalition for Open Government.
“… 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.
The opinion, authored by Justice Evelyn Wilson, also stated that agencies cannot split a public record “into its constituent parts: all recorded information within a record is the record, and thus must be disclosed unless specifically exempted by KORA.”
“If a member of the public submits a KORA request for a ‘copy’ of a noncopyrighted video, for example, a copy of only the video’s audio component constitutes only a part of the requested record,” the opinion stated. “Put another way, the record itself includes not only the information it contains, but also the form in which the information is stored. The form itself is a secondary kind of information that is also public. KORA does not contemplate government agencies divorcing form from raw data or information.”
The opinion stems from a case in which a record requestor, Kelly Roe, sought records from Phillips County Hospital in north-central Kansas.
The hospital “refused to produce for Roe the requested electronic records in native (i.e., ‘electronic’) format but expressed willingness to provide copies of the electronic records in hard copy (i.e., paper) format,” according to the court’s opinion.
Roe filed complaints with the Kansas attorney general’s office and a petition with the Phillips County District Court.
The AG’s Open Government Enforcement Unit concluded that “‘KORA contains no language requiring records be provided in their native format,’ and ‘a public agency retains the discretion to determine the format in which the records are produced,'” according to the opinion. That answer was in conflict to previous opinions stating that “Computerized public information must be provided in the form requested if the district has the capability of producing that form,” and one referencing a county’s “requirements under KORA to provide access to records in any format available for a requestor,” the Supreme Court’s opinion noted.
The district court ruled in Roe’s favor, but a panel of Court of Appeals judges reversed, stating that “there is no plain statutory language which requires a public agency to produce electronic public records in the format of the requester’s choice — such as a native-based electronic format — if the agency has the capability of producing the records in that format.”
But the Kansas Supreme Court opinion stated that copies must be accurate — and the only accurate reproduction of an electronic file is an electronic file.
In this case, Roe had requested data that was kept in electronic spreadsheets. Spreadsheets can contain mathematical formulas and other components.
“Such formulas provide information to show more than just numbers in a cell, but also how those numbers are generated,” the court’s opinion stated. “Hardcopies simply will not work to reproduce accurately such an integrated animal.”
There can now be no doubt that public agencies must be prepared to disclose not only computer files like the Excel spreadsheets Roe 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,'” Kautsch said. File sharing software is another option.
“In 2023, it is no longer a reasonable option for public agencies to delay the inevitable by using traditional mail to disseminate electronic records,” he said.
The court’s full opinion is below (in electronic format):
20230106-Roe-v-Phillips-Co-Hospital
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Mackenzie Clark (she/her), reporter/founder of The Lawrence Times, can be reached at mclark@lawrencekstimes.com. Read more of her work for the Times here. Check out her staff bio here.
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