Court: Third parties can’t intervene in Kansas Open Records Act requests

Hunter Health Clinic central location waiting area.
Hunter Health Clinic central location waiting area. The Wichita Eagle

The latest ruling in a court battle over the Kansas Open Records Act has established third parties can’t intervene in requests for records to a public agency.

But little else was answered by the Kansas Court of Appeals in its November ruling.

The case, which lasted two and a half years, started after Hunter Health Clinic sued to block the release of e-mails from its board members who worked at Wichita State University.

On May 20, 2013, The Eagle submitted a Kansas Open Record Act request to WSU seeking e-mails about the clinic to or from two university employees who were also members of Hunter’s board of directors.

The newspaper sought the e-mails as part of its reporting on the financial troubles at Hunter, which is an Urban Indian Health program that also serves low-income patients.

Within hours of The Eagle filing the request, former Hunter board chair Jaya Escobar and other clinic leaders reached out to their attorney. According to their e-mails, they had concerns that the e-mails contained sensitive information about the clinic’s finances, personnel and potential legal issues with the former CEO.

Hunter received a temporary restraining order to block Wichita State from releasing the records.

Eventually, the case went before Sedgwick County District Court Judge Faith Maughan, who ruled in February 2014 that Hunter had standing as a third party to block the records request.

As part of her decision, she also said the e-mails are owned by the university employees who wrote them and not WSU and therefore are not public records.

The Eagle appealed Maughan’s decision to the Kansas Court of Appeals.

In November – nearly 2 1/2 years after the initial request was filed – the appeals court ruled in favor of The Eagle. The court found Hunter, as a third party, had no right to bring an action under the Kansas Open Records Act.

“KORA is a sword to obtain access to the public record, not a shield to prohibit access to private records. Hunter asked the district court to do the latter,” the court wrote.

Hunter’s board decided not to appeal the decision to the Kansas Supreme Court.

Instead, it turned over the e-mails and talked about the clinic’s finances and the measures taken to fix them.

Case ruling

Because it ruled that the case should be dismissed due to Hunter’s lack of standing, the court’s decision did not address questions about who owns e-mails on public servers, which would have been helpful for those interested in open records and employment law.

It also did not answer whether e-mails dealing with private business on public servers are public.

“That’s something that will have to be dealt with at some point in KORA or elsewhere in Kansas law,” said Lyndon Vix, attorney with Fleeson Gooing, who represents The Eagle.

Currently, Kansas legislators and the judicial council are considering updating the open records law.

Attorney Alan Rupe, who represented Hunter in the lawsuit, said it’s time for the law to be updated to “reflect current realities.”

“A lot has changed since the legislation was first adopted in 1984,” Rupe wrote in an e-mail. “With e-mail and electronic documents composing a large part of the records that are now subject to KORA, there are new issues, like the ones raised in this lawsuit, that simply are not addressed by the statute’s current language.”

The Kansas Open Records Act varies from other states’ open records laws in that it defines a public record not primarily by its content, but whether a public agency possesses the record. Most states define it by its content.

There are tradeoffs with that, Vix said.

“In this case, if we had an open records law like most other states, there’s likely no way to get the Hunter e-mails because they didn’t deal with the public business of WSU. But because the WSU system stored the e-mails, we had a strong basis under Kansas law to argue that they are open records,” Vix said.

WSU’s technology policies advise users that they cannot expect information on the university’s system to remain private and that the information may be subject to disclosure under the open records law.

Future impact

David Moses, general counsel for Wichita State University, says he thinks the law should be changed to focus on whether the content is public record, not necessarily where it’s stored.

It’s an ongoing debate on the state level with e-mails that were sent on private accounts regarding the state budget not being public, as well as on the national front with former Secretary of State Hillary Clinton’s e-mails on matters of state.

“It’s really do you look at the substance of the record or do you look at the source of the record?” Moses said.

He suggests lawmakers consider adding a procedure to give third parties a chance to quash their records from being disclosed by public agencies.

Vix’s advice to the average person filing a record request? Good luck.

“I have read so many denials of KORA requests it’s really kind of discouraging when you think about the fact that this is supposed to create transparency and the way our system is set up, it’s so easy for an agency to deny. I don’t think KORA is fulfilling its purpose in many instances.”

Kelsey Ryan: 316-269-6752, @kelsey_ryan

How to file a record request

Under Kansas law, anyone can make a written request to a public agency for public records it possesses.

Make sure to include your name, address and other ways to contact you about your request, like an e-mail or phone number.

Find out who the record custodian is for the agency you are contacting.

The agency is legally obligated to respond to your request within three business days.

Explain in your written request that you are requesting a record under the Kansas Open Records Act. State as specifically as possible what record you are seeking.

You may want to include an amount that you are willing to pay the agency for copying the records. It’s also a good idea to ask for an itemized receipt.

You may also want to state what format you would like the records in electronically, like PDFs or Excel workbooks.

For more information on what records are public, visit http://ag.ks.gov/legal-services/open-govt/kora-faq.

For more information or help generating a record request to a government agency, visit www.rcfp.org/foia and www.ifoia.org.

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