Roe v. Phillips ( 2022 )

NOT DESIGNATED FOR PUBLICATION
No. 122,810
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
KELLY ROE,
Appellee,
v.
PHILLIPS COUNTY HOSPITAL,
Appellant.
MEMORANDUM OPINION
Appeal from Phillips District Court; PRESTON PRATT, judge. Opinion filed February 11, 2022.
Reversed and remanded with directions.
Russell J. Keller, Keynen J. Wall, and Quentin M. Templeton, of Forbes Law Group, LLC, of
Overland Park, and John F. McClymont, of McClymont Law Office, PA, of Norton, for appellant.
Kelly Roe, appellee pro se.
Maxwell E. Kautsch, of Kautsch Law, L.L.C., of Lawrence, amici curiae Kansas Press
Association, Inc., et al.
Before WARNER, P.J., BUSER and CLINE, JJ.
BUSER, J.: This is an interlocutory appeal by the Phillips County Hospital
(Hospital) of the district court's granting of partial summary judgment in favor of Kelly
Roe in her lawsuit brought under the Kansas Open Records Act (KORA), K.S.A. 45-215
et seq.
1
In her cause of action, Roe contends the Hospital violated KORA by failing to
provide her with copies of public records in the exact format she specified—in this case,
the native-based electronic format. The Hospital repeatedly offered Roe the opportunity
to inspect or receive hard copies of the original electronic records. However, Roe asserted
that KORA requires public agencies to produce copies of public records in the format
requested. The district court agreed, ruling that "the public records must be provided in
the format requested if the public agency has the capability of providing the records in
that format." Concluding that the Hospital could provide the requested electronic records
in their native-based electronic format, the district court granted partial summary
judgment to Roe.
On a related issue, the Hospital also appeals the district court's ruling denying its
motion to seal, to strike, and for sanctions because, it alleges, communications that Roe
secretly recorded during the Hospital's executive session on November 16, 2017, are
protected by the attorney-client privilege.
Upon our review, we conclude the district court erred as a matter of law in ruling
that under KORA, public records must be provided in the format requested if the public
agency has the capability of providing the records in that format. More specifically, we
hold that KORA does not require 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 record in that requested format.
Moreover, we hold the district court also erred as a matter of law in declining to
seal and strike communications that were protected by the attorney-client privilege.
Accordingly, we reverse and remand with directions.
2
FACTUAL AND PROCEDURAL BACKGROUND
The Hospital is a public agency within the meaning of K.S.A. 2020 Supp. 45-
217(f). As a result, it is subject to KORA. Roe served as a trustee on the Hospital's Board
of Trustees (Board) for about two years until she resigned on February 15, 2019.
Three days after her resignation, on February 18, 2019, Roe sent the Hospital a
KORA request for records. Roe sent additional KORA requests to the Hospital on
February 28, 2019; March 1, 2019; March 14, 2019; April 29, 2019; June 4, 2019; and
July 8, 2019. These KORA requests sought the production of the following public
records available in their native-based electronic format or hard copies delivered by fax if
not available in electronic format: 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.
On February 20, 2019, the Hospital answered Roe's first KORA request, stating
that it would not provide Roe with electronic records because "[n]either the Kansas Open
Records Act nor the [Hospital's Open Records] Policy allow for native-based electronic
production or the faxing of documents, as you requested." The Hospital attached a copy
of its Open Records Policy. This policy did not explicitly exclude native-based electronic
copies, but it expressly stated that requested documents would be provided by
photocopies or access/inspection of the records. In its letter, the Hospital stated: "Please
let us know if you want copies of the requested records or want to view the records at the
Hospital." The Hospital also asked Roe if she wanted an estimate of the fees associated
with the document production. Consistent with KORA, the Hospital's policy required
requestors to prepay the costs associated with KORA requests.
3
In subsequent refusal letters responding to Roe's additional requests, the Hospital
referred to its policy and noted that it did not allow for native-based electronic production
or the faxing of documents. In response to Roe's fifth and sixth requests for native-based
electronic documents, the Hospital stated that Roe was "well aware of [the] policy." In a
letter dated May 28, 2019, the Hospital's attorney advised that, contrary to Roe's request,
the hospital would not provide her with a computer terminal to inspect computer files, but
it would provide hardcopy documents for her inspection.
Roe noted that her requests for electronic copies were denied even though it is
undisputed that the Hospital regularly uses computer programs to create electronic files,
the Hospital regularly sends emails to the members of its Board containing electronic
files, the Hospital regularly shows PowerPoint presentations and Excel spreadsheets at its
open Board meetings, and individual cells in Excel spreadsheets may contain formulas or
references to other spreadsheets or records.
Beginning on February 21, 2019, Roe filed numerous complaints with the Kansas
Attorney General regarding the Hospital's refusal to provide her with the requested
records in their original, native-based electronic format. On May 29, 2019, before the
Attorney General had responded to any of her complaints, Roe filed a lawsuit in the
district court to enforce her right to receive the records as requested under KORA. Roe
filed an amended petition on June 17, 2019.
On September 26, 2019, after investigating Roe's complaints against the Hospital,
the Attorney General concluded that "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."
Roe and the Hospital filed competing motions for summary judgment. Roe's
motion was filed on December 2, 2019. In her motion, Roe claimed summary judgment
4
was appropriate because KORA requires that all public records be disclosed to a
requestor in the format requested if the public agency is capable of producing the records
in that format. On January 2, 2020, the Hospital filed its motion for summary judgment,
arguing that the Hospital did not violate KORA because KORA did not entitle Roe to
native-based electronic copies of public records.
In her reply in support of summary judgment, Roe filed a transcript of a recording
that she claimed she had made on November 16, 2017, during an executive session of the
Hospital's Board meeting. In response, John McClymont, one of the Hospital's attorneys,
sent a letter to the district court asking that Roe's reply be sealed and stricken because it
contained a transcript from an executive session—which was closed for privileged
attorney-client consultation under K.S.A 75-4319(b)(2)—and the disclosure of the
contents of that meeting violated the attorney-client privilege.
The district court temporarily sealed the document for 14 days to allow the
Hospital to file a motion under K.S.A. 2020 Supp. 60-2617, that gives the court
discretion to seal court records after a hearing and a finding of good cause. Within the
time allotted, the Hospital filed a motion to seal, to strike, and for sanctions under K.S.A.
2020 Supp. 60-2617. In response, Roe argued that the attorney-client privilege either did
not apply or had been waived. The Hospital filed a reply, reprising its earlier arguments,
and asking the district court to impose sanctions "to discourage Roe from further abusing
her rights within the judiciary."
On April 7, 2020, the district court granted Roe's motion for summary judgment in
part and denied the Hospital's competing motion for summary judgment. The court
summarized the central issue in this case by using an analogy:
"This is a case in which Roe requested to buy an apple, but Hospital responded it
will sell her an orange if she first pays for the orange. Roe's petition is based on alleged
5
KORA violations because she requested copies of public records in their native-based
electronic format (the apple), but Hospital refused to provide electronic copies and
insisted that only hard copies (the orange) be provided by printing the records and the
standard photocopy charges being paid."
The district court concluded that "the public records must be provided in the
format requested if the public agency has the capability of providing the records in that
format." The district court granted partial summary judgment to Roe, finding that the
Hospital "is capable of providing the records in electronic format . . . ." In entering the
order, the district court acknowledged: "While true that KORA does not specifically say
copies must be produced in electronic format, that is implied."
In addition, the district court also denied the Hospital's request to seal or to strike
the disclosed transcript from the record as well as its request for sanctions. The district
court ruled that the attorney-client privilege did not apply to the November 16, 2017,
executive session because a third party was present during the session which meant the
privilege did not apply. Additionally, the district court ruled the Hospital waived the
attorney-client privilege regarding communications made during the executive session
wherein a Kansas Open Meetings Act (KOMA), K.S.A. 75-4317 et seq. investigation was
discussed.
In both rulings—the motion granting Roe partial summary judgment and the
motion denying the motion to seal, to strike, and order sanctions—the district court
provided findings to allow the parties to file an interlocutory appeal from its rulings and
staying the matter pending appeal. The Hospital filed a notice of appeal from both rulings
under K.S.A. 2020 Supp. 60-2102(c). Our court granted the interlocutory appeal on May
15, 2020.
6
DOES KORA REQUIRE 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 RECORD IN THAT
FORMAT?
On appeal, the Hospital contends the district court erred in granting Roe's motion
for summary judgment in part and ruling that KORA requires the Hospital to provide the
electronic public records to Roe in the format she requested. The Hospital argues that the
plain language of K.S.A. 2020 Supp. 45-219—read together and in harmony with related
provisions of KORA—unequivocally shows that KORA does not require production of
public records in native-based electronic format or the specific format requested by the
party making the request.
Our court's standard of review on summary judgment provides:
"'Summary judgment is appropriate when the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, show that there is no
genuine issue as to any material fact and that the moving party is entitled to judgment as
a matter of law. The trial court is required to resolve all facts and inferences which may
reasonably be drawn from the evidence in favor of the party against whom the ruling is
sought. When opposing a motion for summary judgment, an adverse party must come
forward with evidence to establish a dispute as to a material fact. In order to preclude
summary judgment, the facts subject to the dispute must be material to the conclusive
issues in the case. On appeal, we apply the same rules and when we find reasonable
minds could differ as to the conclusions drawn from the evidence, summary judgment
must be denied.'" Patterson v. Cowley County, Kansas, 307 Kan. 616, 621, 413 P.3d 432(2018).
When parties have not provided any disputed facts relevant to the legal issue
raised, an appellate court's review of an order granting or denying a motion for summary
judgment is unlimited. Becker v. The Bar Plan Mutual Insurance Company, 308 Kan.
1307, 1311-12, 429 P.3d 212 (2018). In this appeal, the parties have not disputed any of
7
the facts that the other party asserts is uncontroverted as to the issue raised regarding the
interpretation of KORA, so the facts are deemed admitted.
The Hospital, a public agency within the meaning of KORA, refused to produce
copies or allow inspection by Roe of native-based electronic records it made, maintained,
kept, or held in its possession at the time of her request, and in the manner in which she
requested production. However, the Hospital advised that it would allow hard copies of
the files to be inspected or provide hard copies to Roe. The Hospital does not contend
that the requested electronic records are subject to any statutory exemption, nor does it
claim the records do not exist (other than the McClymont report discussed later), or that it
could not produce the computer files in their original native-based electronic format.
Resolving this issue calls for the statutory interpretation of certain provisions of
KORA. Statutory interpretation presents a question of law over which appellate courts
have unlimited review. Nauheim v. City of Topeka, 309 Kan. 145, 149, 432 P.3d 647(2019). The most fundamental rule of statutory construction is that the intent of the
Legislature governs if that intent can be ascertained. State ex rel. Schmidt v. City of
Wichita, 303 Kan. 650, 659, 367 P.3d 282 (2016). This court must first attempt to
ascertain legislative intent through the statutory language enacted, giving common words
their ordinary meanings. Nauheim, 309 Kan. at 149. When a statute is plain and
unambiguous, an appellate court should not speculate about the legislative intent behind
that clear language, and it should refrain from reading something into the statute that is
not readily found in its words. Ullery v. Othick, 304 Kan. 405, 409, 372 P.3d 1135(2016). Where there is no ambiguity, the court need not resort to statutory construction.
Only if the statute's language or text is unclear or ambiguous does the court use canons of
construction or legislative history to construe the Legislature's intent. Nauheim, 309 Kan.
at 149-50.
8
Of particular relevance to this appeal, even if "the court believes that the
legislature has omitted a vital provision in a statute," the remedy lies solely with the
Legislature unless the omitted provision can be found under any reasonable interpretation
of the language actually used. Bussman v. Safeco Insurance Co. of America, 298 Kan.
700, 725, 317 P.3d 70 (2014); see State v. Prine, 297 Kan. 460, 475, 303 P.3d 662 (2013)
("No matter what the legislature may have really intended to do, if it did not in fact do it,
under any reasonable interpretation of the language used, the defect is one that the
legislature alone can correct.").
Having briefly surveyed our general rules of statutory interpretation, we next
summarize the relevant Kansas law relating to KORA. The records kept by a county
hospital are public records as defined by KORA, K.S.A. 45-215 et seq., and, therefore,
are subject to the provisions of KORA, including the provision of K.S.A. 2020 Supp. 45-
221. Public record means any recorded information, regardless of form, characteristics, or
location, which is made, maintained, kept, or possessed by any public agency. K.S.A.
2020 Supp. 45-217(g)(1)(A). All public records shall be open for inspection by any
person under K.S.A. 45-218(a), and any person may make abstracts or obtain copies of
any public record to which such person has access. K.S.A. 2020 Supp. 45-219(a). KORA
provides limited specific exceptions to disclosure which are subject to the declared public
policy of Kansas that public records shall be open for inspection by any person unless
otherwise provided by KORA and shall be liberally construed and applied to promote
such policy. Hunter Health Clinic v. WSU, 52 Kan. App. 2d 1, 11, 362 P.3d 10 (2015)
(KORA must promote the public policy of openness). KORA shall be liberally construed
to promote the public policy that public records should be open for inspection. K.S.A. 45-
216.
We begin the analysis with a simple question: Does KORA's plain statutory
language require a public agency to produce electronic public records in the format of the
9
requester's choice—such as a native-based electronic format—if the agency has the
capability of producing the records in that requested format?
The Hospital focuses its argument on the fact that KORA does not explicitly
provide any such statutory mandate: "Nowhere in this plain language does the legislature
impose the burden on the public agency to accommodate requests for copies in specific
formats or otherwise empower a person to compel reproduction in native-based electronic
format."
For her part, at oral arguments, Roe candidly conceded that "that specific
language" is not found in KORA. As she contended in her brief, however, Roe argued
that a liberal construction of KORA implied such a requirement.
In its order, the district court answered the question this way: "While true that
KORA does not specifically say copies must be produced in electronic format, that is
implied." (Emphases added.) Later in its order the district court again candidly
acknowledged: "Even though the Court has determined under Count 1 that Hospital must
provide Roe with electronic copies, that is not clearly stated within KORA." (Emphasis
added.) In essence, the district court adopted Roe's reasoning that the omission of explicit
language is not determinative since KORA's provisions should be liberally construed to
promote the policy of open records. See K.S.A. 45-216.
Our independent review of KORA's provisions reveals 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.
In this regard, it should be noted that KORA includes two limitations to accessing
and copying electronic records. The first is found in K.S.A. 2020 Supp. 45-219(g), added
10
as an amendment in 2010, which limits the means by which the public may receive
electronic copies:
"Nothing in the open records act shall require a public agency to electronically
make copies of public records by allowing a person to obtain copies of a public record by
inserting, connecting or otherwise attaching an electronic device provided by such person
to the computer or other electronic device of the public agency."
The second reference to electronic records in KORA is in K.S.A. 2020 Supp. 45-
221(a)(16), which, exempts from disclosure "[s]oftware programs for electronic data
processing and documentation thereof," with the caveat that "each public agency shall
maintain a register, open to the public," that describes "[t]he information which the
agency maintains on computer facilities" and "the form in which the information can be
made available using existing computer programs." K.S.A. 2020 Supp. 45-221(a)(16)(A)-
(B).
A plain reading of KORA, K.S.A. 2020 Supp. 45-221(a)(16) and K.S.A. 2020
Supp. 45-219(g), shows that while an agency may produce electronic records in response
to an open records request, there is no mandatory language requiring a public agency to
provide copies of electronic documents in their native-based electronic formats upon
request.
It is a central tenet of statutory construction that when a statute is plain and
unambiguous, an appellate court should refrain from reading something into the statute
that is not readily found in its words. Ullery, 304 Kan. at 409. A court does not read into
the statute words that are not found in the plain language of the statute. Estate of Graber
v. Dillon Companies, 309 Kan. 509, 516, 439 P.3d 291 (2019). "'An appellate court
merely interprets the language as it appears; it is not free to speculate and cannot read
into the statute language not readily found there.'" (Emphasis added.) Harsay v.
11
University of Kansas, 308 Kan. 1371, 1381, 430 P.3d 30 (2018). "A court presumes the
Legislature expressed its intent through the statutory language used." Estate of Graber,
309 Kan. at 516-17. As a result, an appellate court's role is not to "delete provisions or
supply omissions in a statute." (Emphasis added.) Prine, 297 Kan. at 475.
In response to the district court's ruling that while no express statutory language
requires disclosure in a particular requested format it is implied by KORA's liberal
construction, the Hospital points out that the district court's interpretation goes beyond
liberal construction. We agree. See Barnes v. Board of Cowley County Comm'rs, 47 Kan.
App. 2d 353, 361, 274 P.3d 697 (2012) ("Although the legislature intended the Act to be
liberally construed, when a statute is plain and unambiguous, an appellate court does not
speculate as to the legislative intent behind it and will not read into the statute something
not readily found in it.").
As an appellate court we are duty bound to apply the law as the Legislature
enacted it, which is as expressed in the plain and ordinary statutory language. Upon our
review, we find an absence of language that expresses the Legislature's intent under
KORA to require public agencies to provide copies of electronic public records in their
native, electronic format upon request. As a court, we will not add a requirement to
KORA's inspection and copying provisions that the Legislature did not include in the
plain language of the act.
To be clear, under KORA's plain language, a public agency's electronic records,
unless specifically exempted under KORA, constitute public records that are subject to
inspection and, if requested, copies provided to the requester. See K.S.A. 2020 Supp. 45-
219(a); K.S.A. 45-218(a); and K.S.A. 2020 Supp. 45-217(g)(1)(A). While the Hospital
declined to provide electronic records in their native, electronic format, it contends their
offer to produce hard copies of those electronic records fulfilled the disclosure
requirements under KORA. While Roe asserts that KORA mandates that the Hospital
12
provide computerized records in their electronic format, the Hospital insists that "[t]he
plain meaning of K.S.A. 45-219(a) confirms that a public agency need only provide a
substantively accurate reproduction of the original to the requesting party, regardless of
the form or format, to satisfy its obligation under KORA to provide 'copies' upon
request." In this regard, the district court found as an uncontroverted fact that the
"Hospital offered to provide hard copies or allow Roe to view the records at the hospital."
Under KORA, a public agency's obligation is to provide "copies" of a public
record, if requested. K.S.A. 2020 Supp. 45-219(a), K.S.A. 2020 Supp. 45-217(g)(1). The
Hospital asserts that the plain and ordinary meaning of the word "copies" evidences the
Legislature's clear intent. It contends that KORA permits a party to obtain reproductions
of the original record, but nowhere in this plain language of the Act does the Legislature
impose the burden on the public agency to accommodate requests for copies in specific
formats or otherwise compel reproduction in a native-based electronic format.
What is meant by the term "copies"? Our Supreme Court has instructed that when
a statute does not define a term, "[d]ictionary definitions are good sources for the
'ordinary, contemporary, common ' meanings of words." Midwest Crane & Rigging, LLC
v. Kansas Corporation Comm'n, 306 Kan. 845, 851, 397 P.3d 1205 (2017). In Midwest
Crane & Rigging, LLC, our Supreme Court relied on Black's Law Dictionary and the
Merriam-Webster Dictionary to define a statutory term.
Applying dictionary definitions to this case, Black's Law Dictionary defines
"copy" as "[a]n imitation or reproduction of an original." Black's Law Dictionary 423
(11th ed. 2019). Similarly, the Webster's dictionary defines a "copy" as "a thing made just
like another; imitation of an original; full reproduction or transcription." Webster's New
World College Dictionary 328 (5th ed. 2014). It is apparent that the common usage and
plain meaning of the term "copies" allows for reproductions which may involve
numerous formats or mediums. Employing these dictionary definitions, we are persuaded
13
that, provided the public agency delivers an accurate reproduction of the original
electronic records to the requester, KORA's requirement that a copy of the public record
must be provided is satisfied.
While the Hospital maintains the plain language of K.S.A. 2020 Supp. 45-219(a)
which provides that a person "may make abstracts or obtain copies of any public record
to which such person has access under this act" is dispositive, it also argues that other
provisions of KORA and related legislation, considered together, shows that "the
legislature intended the public agency retain discretion over the method or manner by
which it responds to requests to inspect or copy public records, unless otherwise
expressly limited."
KORA grants the public the important right to inspect public records. K.S.A. 45-
216. In Wichita Eagle and Beacon Publishing Co., Inc. v. Simmons, 274 Kan. 194, Syl. ¶
4, 50 P.3d 66 (2002), our Supreme Court held that under KORA, "any nonexempt
document, computer file, or tape recording in the possession of a public agency is subject
to public disclosure under KORA." However, there is no explicit statutory requirement
regarding the form such disclosure must take. Under KORA, the time, place, and manner
of inspection are matters largely left to the discretion of the public agency. The
Legislature simply requires the public agency to make "suitable facilities . . . available"
for this purpose. K.S.A. 45-218(a). The time for inspection is tied to the public agency's
regular business hours and "any additional hours established by the public agency."
K.S.A. 45-218(b). In addition, the public agency has the discretion to "charge and require
advance payment of a fee for providing access" to inspect the public records. K.S.A. 45-
218(f). And the public agency retains its discretion to refuse requests that place an
unreasonable burden on the agency or are intended to disrupt its essential functions.
K.S.A. 45-218(e).
14
On the other hand, when the Legislature intended to restrict the time, place, or
manner of inspection under KORA, it did so explicitly. For example, the public agency is
required to act on requests for inspection within three business days or provide a written
explanation for the delay. K.S.A. 45-218(d). Another example is that when a request for
inspection is not directed to the official custodian of records, the public agency is
required to inform the requestor and provide contact information for the custodian.
K.S.A. 45-218(c). The Legislature limits reasonable charges for various public agencies,
as set forth in K.S.A. 2020 Supp. 45-219(c)(1)-(5). And the Legislature has directed
public agencies to remit such payments to appropriate funds. K.S.A. 2020 Supp. 45-
219(d)-(e).
The provisions of KORA also balance the public's right to request copies of public
records with the agency's autonomy, control, and discretion throughout the copying
process. For example, copies of public records "shall be made while the records are in the
possession, custody and control of the custodian or a person designated by the custodian."
K.S.A. 2020 Supp. 45-219(b). Additionally, when practical the copies must "be made in
the place where the records are kept" by the agency. K.S.A. 2020 Supp. 45-219(b). If the
agency deems it necessary to use other facilities to complete the reproduction process, the
person requesting the record is obligated to pay the vendor the associated copying costs,
and the public agency may charge a "fee for the services rendered in supervising the
copying" and establish the "schedule of times for making copies at other facilities."
K.S.A. 2020 Supp. 45-219(b).
Another example of agency discretion in KORA relates to KORA's requirement
that every public agency "designate a local freedom of information officer." K.S.A. 45-
226(a). The Legislature does not specify qualifications for this position and defers to the
public agency for such matters. K.S.A. 45-226. While the responsibilities of the public
information officer are generally outlined in the statute, the officer is empowered to
develop educational materials and information regarding the open records act and create a
15
brochure outlining the agency's KORA procedures. K.S.A. 45-226(b)(1), (4). Relevant to
this appeal, the brochure must set forth "the procedures for inspecting and obtaining a
copy of public records." K.S.A. 45-226(b)(4). The provisions relating to the freedom of
information officer demonstrate the Legislature's intent to delegate to public agencies the
authority to control the time, place, and manner of copying, unless expressly declared to
the contrary. Consistent with KORA's other provisions, nothing in K.S.A. 45-226 limits
the officer's discretion in determining the form or format in which copies of records will
be provided.
Considered together, these statutes make clear that under KORA the Legislature
did not authorize the requestor to have control over the original records or copying
process but afforded the responsibility of determining the manner and method of
reproduction to the public agency. And in the limited circumstances wherein the
Legislature imposed limitations upon an agency's discretion, it did so explicitly and not
by implication.
The Hospital also points out that, unlike Kansas, in more recent years, other
jurisdictions have enacted explicit production format requirements into their open records
act legislation. For example, in the Freedom of Information Act, Congress provided that
"an agency shall provide the record in any form or format requested by the person if the
record is readily reproducible by the agency in that form or format." 5 U.S.C.
§ 552(a)(3)(B) (2018). The Kentucky Legislature added a similar requirement. See Ky.
Rev. Stat. Ann. § 61.874(2)(a) (providing that records "shall be available for copying in
either standard electronic or standard hard copy format, as designated by the party
requesting the records, where the agency currently maintains the records in electronic
format"). See Neb. Rev. Stat. § 84-712(3)(a) (open records act provides that records "may
be obtained in any form designated by the requester in which the public record is
maintained or produced, including, but not limited to . . . electronic data . . . ."); Vt. Stat.
Ann. tit. 1, §316(i) ("If an agency maintains public records in an electronic format,
16
nonexempt public records shall be available for copying in either the standard electronic
format or the standard paper format, as designated by the party requesting the records.").
Notably, the provisions expressly providing for the disclosure of documents in
electronic form were added after Kansas first adopted KORA. For example, 5 U.S.C. §
552(a)(3)(B) did not become law until 1996 when it was added to the Freedom of
Information Act as part of the Electronic Freedom of Information Act Amendments of
1996 (Pub. L. No. 104-231, sec. 5, § 522(a)(3), 10 Stat. 3048, 3050 [1996]). Similarly,
the Kentucky Legislature did not enact Ky. Rev. Stat.§ 61.874(2)(a) into law until 1994
(1994 Ky. Acts, ch. 262, sec. 4).
Clearly, in more recent times, some jurisdictions with open records laws have
added the one-sentence disclosure requirement that Roe is seeking in this case. Yet,
although KORA has been amended numerous times since its original enactment, and our
Legislature presumably is aware of these updated statutory provisions, the Legislature has
not amended KORA to add a similar requirement. See State v. Bee, 288 Kan. 733, 738,
207 P.3d 244 (2009) (An appellate court presumes that the Legislature acts with full
knowledge and information about the statutory subject matter, prior and existing law, and
the judicial decisions interpreting the prior and existing law and legislation.).
In support of her legal position, Roe cites to several Kansas attorney general
opinions issued from 1988 through 2009 wherein the attorney general interpreted KORA
to require production of certain computerized records in their native format. In its order
granting partial summary judgment, the district court noted these opinions and concluded:
"Previous attorney general opinions have determined that KORA requires, by
implication, providing records that are kept or created upon computers in their electronic
format." (Emphasis added.) We acknowledge that some prior attorney general opinions
issued from 1988 through 2009 did, under various factual circumstances and related to
17
specific computerized documents, state that KORA impliedly requires disclosure of
electronic public records when requested in an electronic format.
On the other hand, the district court did not rely on or discuss the most recent
attorney general's opinion issued on September 26, 2019. This 10-page opinion was filed
in direct response to Roe's KORA complaints and pertains to the same public records at
issue in this litigation. Regarding Roe's repeated complaints that the Hospital failed to
provide native­based electronic production of open records, the attorney general relied on
the plain language of KORA and found: "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." The attorney general concluded: "In order to
find a violation, we must conclude by a preponderance of the evidence that a public
agency knowingly violated the KORA. For the reasons described above, we conclude that
the [H]ospital did not knowingly or intentionally violate the KORA."
In this latest opinion, the attorney general considered the past opinions of the
attorney general's office but concluded that the Hospital's responses to Roe's request in
this case did not violate the provisions of KORA. During oral arguments, Roe stated she
was not able to reconcile the older attorney general opinions with the latest one, except to
say the September 26, 2019, opinion in response to her complaints was "unsubstantiated."
For its part, the Hospital argues that the latest opinion directly related to the public
records at issue in this litigation is more relevant than opinions issued by the attorney
general 10 to 30 years ago.
Appellate courts are not bound by the conclusions of attorney general opinions,
but they may provide persuasive authority. Data Tree, LLC v. Meek, 279 Kan. 445, 455,
109 P.3d 1226 (2005). Like Roe, we have difficulty reconciling the contradictory
opinions issued by the attorneys general over the years, and for that reason we do not
place much weight on their conclusions. If there is a common thread in the opinions,
18
however, it is that when the attorney general found that KORA required disclosure of
public records in the format requested, this right was usually described as "implied." See
Att'y Gen. Op. No. 89-106, 1989 WL 455546, at *4 (indicating that "[b]y implication,"
the statute requires the production of information in the format requested); Att'y Gen Op.
No. 2009-14, 2009 WL 1999673, at *2 (same).
The September 26, 2019 opinion, however, dispenses with statutory construction
to discern an implied right, and employs a plain reading of the statute to conclude that no
such language requiring a public agency to provide public records in a native format is
found in KORA. As discussed earlier, we find this is the proper approach to
understanding the meaning of KORA's provisions. See Fort Hays State University. v.
Fort Hays University Chapter, American Assoc. of University Professors, 290 Kan. 446,
464-65, 228 P.3d 403 (2010); Bussman, 298 Kan. at 725 ("It is not [the court's] place to
add a provision to [the statute]" that is unavailable under its plain language.).
All things considered, we hold the district court erred as a matter of law in
granting partial summary judgment to Roe. This is because KORA does not require 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 record in that requested format. Accordingly, the judgment is reversed, and
the case is remanded for further proceedings with directions.
We pause to address the subject of metadata and formulas that may be contained
within the electronic records subject to disclosure under KORA. In its order, the district
court mentioned the characteristics of some of the Hospital's electronic records. For
example, it is uncontroverted that the Hospital uses computer programs such as Microsoft
Word, PowerPoint, Adobe Acrobat.pdfs, and Excel spreadsheets to create electronic files.
The district court noted that "individual cells in the Excel spreadsheets Hospital creates
may include formulas."
19
During oral argument, the Hospital's attorney discounted the importance of
formulas and metadata stating, "Even if metadata is part of a record there's really no
allegation that the things that are hidden—formulas in an excel spreadsheet—are relevant
to any request that's been made by Ms. Roe in this matter." The Hospital also cautions
that production of metadata could result in discovery of notes and preliminary drafts that,
in some circumstances, are exempt from KORA. See K.S.A. 2020 Supp. 45-221(a)(20).
For her part, Roe stated that she did not specifically request metadata but
"metadata doesn't contain the separate previous drafts or copies or whatnot. If I saw in the
metadata that there had been a previous draft I would have to request that separate draft."
Both attorneys agreed that no expert testimony was presented in this case regarding the
production of different computer formats or metadata.
In short, the state of our record and argument in this regard is less than ideal. As a
result, we decline to weigh in and decide this specific matter, especially since the focus of
the briefing was on the overarching question of whether KORA requires production in
native format. On remand, the parties may brief and submit arguments to the district court
regarding the production of hard copies relating to metadata and formulas contained in
the Hospital's electronic public records subject to disclosure under KORA.
DID THE DISTRICT COURT ERR BY DENYING THE HOSPITAL'S MOTION TO SEAL AND
STRIKE ATTORNEY-CLIENT PRIVILEGED COMMUNICATIONS?
For its second issue on appeal, the Hospital contends the district court erred in
denying the Hospital's motion to seal Roe's reply in support of her motion for summary
judgment, to strike the offending portions of documents in support, and for sanctions,
"because the communications during Hospital's executive session that Ms. Roe
surreptitiously recorded are protected by attorney client privilege." Roe counters that the
20
district court properly determined that the executive session was not subject to the
attorney-client privilege and, if any privilege applied, the Hospital waived that privilege.
As part of her open records request, Roe sought disclosure of an investigative
report she claimed McClymont provided to the Board in an executive session on
November 16, 2017. Roe asserted this report gave legal advice to the Hospital regarding a
potential violation of KOMA. On August 16, 2019, Roe petitioned the district court to
enforce her right to receive the report. To support her motion for summary judgment
regarding her right to receive the report, Roe submitted her own affidavit wherein she
stated that she believed the report was prepared by McClymont regarding his
investigation of the KOMA matter.
The Hospital's response controverted Roe's allegations. In particular, the Hospital
stated that McClymont had not finalized his report at the time of the executive session,
and the report subsequently was not finalized because the Hospital received advice from
the attorney general's office that it was not necessary to self-report because there was no
KOMA violation. In support of its claims, the Hospital submitted affidavits from the
Board Chairman Stanley Kats and the Hospital's Chief Executive Officer Rex Walk,
stating that the report was not provided to any Board member at the November 16, 2017,
executive session.
In her reply to the Hospital's response, Roe included a certified transcript of an
audio recording of the executive session, which she stated she had secretly recorded.
According to Roe, the recording supported her claim that the McClymont report existed
and that during the meeting, McClymont handed the investigative report to Kats.
In response, McClymont sent a letter to the district court asking that Roe's reply be
sealed and the transcript references be stricken because any communications that
occurred during the executive session—which was closed for privileged attorney-client
21
consultation under K.S.A 75-4319(b)(2)—and the disclosure of the contents of that
meeting violated the attorney-client privilege. The district court temporarily sealed the
document for 14 days pursuant to K.S.A. 2020 Supp. 60-2617. The Hospital filed a
timely motion under K.S.A. 2020 Supp. 60-2617 and both parties presented their
arguments.
Relevant to this issue, Les Lacy, the vice president of regional operations for the
management company Great Plains Health Alliance, Inc., a third­party contractor, was
present during the November 16, 2017, executive session. The Hospital acknowledged
that Lacy was present during the executive session because he was responsible for
managing the Hospital's operations.
The district court denied the Hospital's request to seal or to strike the disclosed
transcript from the record as well as its request for sanctions. The district court found that
''because Lacy did not give information to the lawyers nor could he take action on the
advice given by the lawyers, he was a third party and the communications made between
Hospital and its attorneys in the executive session on 11/16/2017 regarding the alleged
KOMA violation were not confidential and therefore not privileged." In addition, the
district court ruled that the Hospital waived its attorney-client privilege with McClymont
regarding the KOMA investigation.
In the district court's ruling, it found that "there remains a factual dispute about
whether or not McClymont handed a written report to the Hospital's board chairman.
That dispute of fact will need to be determined at trial, but the evidence which can be
presented at trial depends upon the Court's proper application of the attorney-client
privilege."
As a preliminary matter, Roe contends the Hospital did not appeal this ruling and,
as a result, the issue is abandoned. The notice of appeal, however, explicitly covers the
22
ruling by the district court on the Hospital's motion. Roe's claim that this issue has been
waived or abandoned lacks merit. We will address the issue.
Roe also claims the Hospital did not argue on appeal that sanctions should have
been imposed, other than noting the district court could reconsider sanctions on remand.
We agree this issue is not appropriate for our review. We will not review the district
court's ruling denying sanctions. See Russell v. May, 306 Kan. 1058, 1089, 400 P.3d 647(2017) (A point raised incidentally in a brief and not argued therein is deemed
abandoned.).
Our standard of review provides: "When the underlying facts are undisputed, a
ruling on the existence and effect of an attorney-client privilege is reviewable by an
appellate court de novo." Freebird, Inc. v. Cimarex Energy Co., 46 Kan. App. 2d 631,
639, 264 P.3d 500 (2011) (citing State v. Jones, 287 Kan. 547, 554, 198 P.3d 756[2008]).
In denying the Hospital's motion, the district court reasoned that the Hospital
waived the attorney-client privilege due to Lacy's presence. The district court found that a
waiver arises if a corporate representative (1) provides no information to counsel in
connection with a communication; or (2) lacks authority to unilaterally implement
counsel's advice. The Hospital asserts this decision "would radically restrict the attorney-
client privilege, discarding statutory authority and putting the State of Kansas out of step
with other jurisdictions." As a second reason to deny the motion, the district court also
found the Hospital expressly waived its attorney-client privilege during the November 16,
2017, executive session.
We begin the analysis with a brief review of Kansas law relating to attorney-client
privileged communications. K.S.A. 2020 Supp. 60-426(a) provides that "communications
found by the judge to have been between an attorney and such attorney's client in the
23
course of that relationship and in professional confidence, are privileged . . . ." See State
v. Gonzalez, 290 Kan. 747, 234 P.3d 1 (2010). The Legislature has defined
"communication" to include "advice given by the attorney in the course of representing
the client." K.S.A. 2020 Supp. 60-426(c)(2). See Cypress Media, Inc. v. City of Overland
Park, 268 Kan. 407, 419-20, 997 P.2d 681 (2000) (recognizing that K.S.A. 2020 Supp.
60-426[c] includes communications from lawyer to client); Sprague v. Thorn Americas,
Inc., 129 F.3d 1355, 1371 (10th Cir. 1997) (Kansas courts favor a broad approach to
protecting attorney-client communications "without the qualification that the
communications must contain confidential matters revealed by the client earlier to the
attorney."). "It is well settled that corporations may assert the attorney-client privilege."
Great Plains Mut. Ins. Co. v. Mutual Reinsurance Bureau, 150 F.R.D. 193, 196 (D. Kan.
1993) (citing Upjohn Co. v. United States, 449 U.S. 383, 389-90, 101 S. Ct. 677, 66 L.
Ed. 2d 584 [1981]). Importantly, the Kansas Supreme Court has admonished that "[t]he
privilege should not be set aside lightly." Wallace, Saunders, Austin, Brown & Enochs,
Chartered v. Louisburg Grain Co., Inc., 250 Kan. 54, 63, 824 P.2d 933 (1992).
Our Supreme Court has held that the attorney-client privilege applies if all eight of
the following factors are present:
"'(1) Where legal advice is sought (2) from a professional legal advisor in his capacity as
such, (3) communications made in the course of that relationship (4) made in confidence
(5) by the client (6) are permanently protected (7) from disclosures by the client, the legal
advisor, or any other witness (8) unless the privilege is waived.'" Cypress Media, Inc.,
268 Kan. at 418.
The Hospital has the burden to show the privilege applies. 268 Kan. at 425; see State ex
rel. Stovall v. Meneley, 271 Kan. 355, 374, 22 P.3d 124 (2001) (party asserting the
privilege bears the burden of proof).
24
Relevant to this appeal, the attorney-client privilege does not apply to
communications made in the presence of third parties. See Fischer v. Mr. Harold's Hair
Lab, Inc., 215 Kan. 515, 519, 527 P.2d 1026 (1974). Relying on this authority, the district
court determined the attorney-client privilege was waived by Lacy's presence in the
executive session. Lacy is an employee of the Hospital's management team and serves as
an agent of the Hospital under a management agreement. The district court found that
Lacy should be treated as an employee in this case, and that in the corporate context, an
employee may have relevant information needed by corporate counsel if counsel is to
adequately advise the client. See Upjohn, 449 U.S. at 391. The court reasoned that Lacy's
presence at the executive session constituted a waiver of attorney-client privilege because
"Lacy provided no information to Hospital's attorneys regarding the alleged KOMA
violation, nor did Lacy have the ability to act on the advice of Hospital's attorneys
regarding the alleged KOMA violation."
The Hospital disputes the finding that Lacy was a third party, noting that it had a
management agreement with Lacy. When a county hospital enters into a management
agreement "to carry out the regular management of the county hospital, the managing
entity serves as an instrumentality of the county government." State v. Great Plains of
Kiowa County, Inc., 308 Kan. 950, Syl. ¶ 1, 425 P.3d 290 (2018); see K.S.A. 19-4611(d).
It is undisputed that Lacy was the vice president of regional operations for the company
hired to manage the Hospital's operations, and as such, he was acting as an
instrumentality of the county during the executive session.
In support of her legal position, Roe relies on In re Bieter Co., 16 F.3d 929, 937-
38 (8th Cir. 1994), contending that the presence of a third party waived the attorney-
client privilege. However, Bieter does not support Roe's position. In Bieter, the Eighth
Circuit granted the writ of mandamus and held that the attorney-client privilege applies to
communications between corporate counsel and outside consultants, finding that "it is
inappropriate to distinguish" between employees and independent consultants when
25
applying the attorney-client privilege. 16 F.3d at 937. See In re Copper Market Antritrust
Litigation, 200 F.R.D. 213, 220 (S.D.N.Y. 2001) (finding third-party disclosure analysis
"inapposite" regarding outside consultants because they are functional equivalents of
employees for purposes of the attorney-client privilege).
Moreover, Kansas law does not require that Lacy provide information to the
Hospital's attorneys for the privilege to attach. The district court found it significant that
Lacy did not provide information to the lawyers, nor could he take any action on the
advice given to the lawyers. But Lacy was part of the Hospital's management group, and
the privilege also applies when receiving advice from counsel. K.S.A. 2020 Supp. 60-
426(c)(2) ('"Communication' includes advice given by the attorney in the course of
representing the client . . . ."); see Natta v. Hogan, 392 F.2d 686, 693 (10th Cir.1968)
("The recognition that privilege extends to statements of a lawyer to a client is necessary
to prevent the use of the lawyer's statements as admissions of the client."). In other
words, the fact that Lacy did not provide information to the Hospital's lawyers in the
executive session is immaterial. The fact remains that Lacy, in his capacity as manager of
the Hospital's operations, received legal counsel from the Hospital's lawyers.
Regarding the district court's finding that Lacy did not "have the ability to act on
the advice of the Hospital's attorneys regarding the alleged KOMA violation," we find no
factual support in the record for this assertion. On the contrary, the record shows that
Lacy was one of the Hospital's authorized representatives with managerial responsibility.
In summary, K.S.A. 2020 Supp. 60-426(c)(1) provides that a client's "authorized
representative" is included within the scope of the attorney-client privilege. Lacy served
as the Hospital's managing agent. Given this managerial authority and responsibility, it
was appropriate for Lacy to be privy to the legal opinion and strategy developed through
the attorney-client communications during the executive session. Although the district
court reasoned that the privilege may not extend beyond the Hospital's attorneys and the
26
Board, we disagree. No Kansas law recognizes such a bright-line test, which could even
prohibit the attorney-client privilege from attaching to otherwise confidential
communications between counsel and the Hospital's chief executive officer. Moreover,
this understanding is contrary to K.S.A. 19-4611, which confirms there is no legal
distinction between the Hospital and its Board of Trustees. K.S.A. 19-4611(g). We
conclude the district court erred in finding that Lacy's presence in the executive session
constituted a waiver of the attorney-client privilege.
The district court's second reason for denying the Hospital's motion is that the
Hospital expressly and impliedly waived privilege as to any communications made
during the executive session. Roe claims the privilege was waived both through a general
motion authorizing the disclosure of McClymont's advice and a specific motion
authorizing the disclosure of McClymont's findings to the attorney general. The Hospital
counters that it never waived its attorney-client privilege as to communications made
during the executive session.
The November 16, 2017, executive session was attended by three separate
attorneys from two law firms (McClymont Law Office, P.A. and Forbes Law Group,
LLC). During the executive session, the Hospital authorized attorney Frankie Forbes to
disclose McClymont's KOMA findings to the attorney general. Based on this
authorization, the district court ruled that any communication between McClymont and
the Hospital was waived.
Our review of the record on appeal, however, shows the Board's purpose during
the executive session was to only waive the attorney-client privilege as to McClymont's
findings regarding his KOMA investigation in order to inform the attorney general's
office of this matter. We discern no intent to generally waive the attorney-client privilege
as to the communications and contents of the Board's executive session to any person.
The record shows the Hospital provided Forbes with limited authorization to disclose
27
McClymont's investigative findings to the attorney general's office. However, the motion
to disclose the findings was limited to McClymont's findings and did not constitute a
waiver of all privileged attorney-client communications exchanged between the Board
and its attorneys during the executive session. We are persuaded that the district court
mistakenly viewed the Board's limited authorization as a general waiver of all privileged
communications made by all counsel during the executive session.
Additionally, the district court erred in finding a waiver of attorney-client privilege
because no disclosure of a written or oral report—or any other information—occurred.
That is because the Hospital ultimately did not provide a copy of McClymont's report to
the attorney general. Roe counters that the mere authorization of a waiver is sufficient,
but K.S.A. 60-437 provides that privilege is waived, in part, where a party "made
disclosure of any part of the matter or consented to such a disclosure made by anyone."
See Butler ex rel. Commerce Bank, NA. v. HCA Health Services of Kansas, Inc., 27 Kan.
App. 2d 403, 427, 6 P.3d 871 (1999) (waiver of a privileged communication may be
withdrawn at any time before it has been acted on).
In the case on appeal, although there was no express withdrawal of the waiver, the
Hospital never made an actual disclosure. Based on a discussion with the attorney
general's office, the Hospital decided that disclosure of McClymont's report was
unnecessary. Consequently, the Hospital's counsel neither acted on the limited
authorization to waive the privilege in connection with McClymont's investigative
findings, nor did he otherwise disclose any privileged, attorney-client communications to
a third-party. Because the limited disclosure authorized by the Board was not made by
anyone, no waiver of the attorney-client privilege occurred.
Finally, the Hospital asserts that the district court's ruling ignores Forbes' right to
privileged communications. The attorney-client privilege exists "to encourage full and
frank communication between attorneys and their clients" to "promote broader public
28
interests in the observance of law and administration of justice." Upjohn, 449 U.S. at 389;
Meneley, 271 Kan. at 373 (privilege fosters candid communication). Kansas law protects
communications made by McClymont to Forbes as he was actively receiving facts and
giving advice to the Hospital. The privilege extends to communications between an
attorney and a client's "authorized representative." K.S.A. 2020 Supp. 60-426(c)(l).
McClymont was the Hospital's authorized representative to investigate the possible
violation of KOMA. The communications made during the executive session—between
the Board, the Hospital's attorneys, and its representatives—are privileged, and that
privilege was not expressly waived.
The district court erred in denying the Hospital's motion to seal or to strike based
on a finding that the attorney-client privilege did not apply to protect the communications
made during the executive session. Accordingly, the district court erred in denying the
Hospital's motion to seal Roe's reply in support of her motion for summary judgment, and
to strike the attorney-client privileged communications contained in portions of the
documents in support.
The district court's ruling is reversed and the matter is remanded. On remand, the
district court is instructed to strike those portions of Roe's reply, including but not limited
to the transcript of the audio recording of the November 16, 2017 executive session, that
disclosed the privileged attorney-client communications. Upon the district court's review
and confirmation that all attorney-client privileged information has been redacted, Roe
may file the redacted reply.
Reversed and remanded with directions.
29
***
CLINE, J., concurring: I concur but write separately to express my view that
electronic files and electronic information associated with such files (like metadata and
spreadsheet formulas) fall within Kansas Open Records Act's (KORA) definition of
"public record." K.S.A. 2020 Supp. 45-217(g)(1) (defining "public record" to mean "any
recorded information, regardless of form, characteristics or location, which is made,
maintained or kept by or is in the possession of: (A) Any public agency; or (B) any
officer or employee of a public agency . . . ." (Emphasis added.)
I agree Kelly Roe is not entitled to dictate the format in which Phillips County
Hospital (Hospital) produces its public records under KORA. And I would leave the
details of the production of the electronic information and files (including the
reasonableness of the cost of such production and applicability of any exemptions from
production) in the hands of the district court. But I would remand with directions that the
Hospital must satisfy the district court that its proposed format of production (a paper
copy) includes the relevant electronic information associated with the public records (like
metadata and spreadsheet formulas), so long as KORA's other provisions are satisfied and
no exception exists.
30