Hammet v. Schwab

No. 124,679
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
DAVIS HAMMET,
Appellant,
v.
SCOTT SCHWAB, Secretary of State,
Appellee.
SYLLABUS BY THE COURT
1.
The public policy of the State of Kansas expressed in the Kansas Open Records
Act, K.S.A. 45-215 et seq., is that public records shall be open for public inspection by
any person unless the records are within one of the exceptions created in the Act. The Act
is to be liberally construed and applied in order to promote the policy of openness. K.S.A.
45-216(a).
2.
State agencies are required to maintain a register, open to the public, that describes
the information that 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).
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3.
Public records include any recorded information, regardless of form,
characteristics, or location, which is made, maintained, or kept by or is in the
possession of any public agency. K.S.A. 2020 Supp. 45-217(g)(1)(A).
4.
The Kansas Open Records Act may be enforced by injunction, mandamus,
declaratory judgment, or other appropriate order. K.S.A. 2020 Supp. 45-222(a).
5.
A public agency can ask for reasonable fees for providing access to or furnishing
copies of public records. The fees for copies of records shall not exceed the actual cost of
furnishing copies, including the cost of staff time required to make the information
available. K.S.A. 2020 Supp. 45-219(c)(1). The fees for providing access to records
maintained on computer facilities shall include only the cost of any computer services
including staff time required. K.S.A. 2020 Supp. 45-219(c)(2).
Appeal from Shawnee District Court; TERESA L. WATSON, judge. Opinion filed July 22, 2022.
Reversed and remanded with directions.
Joshua M. Pierson, of ACLU Foundation of Kansas, for appellant.
Clayton L. Barker, general counsel, of Kansas Secretary of State's office, for appellee.
Teresa A. Woody, of Kansas Appleseed Center for Law and Justice, Inc., of Lawrence, for amicus
curiae Kansas Appleseed Center for Law and Justice, Inc.
Before ARNOLD-BURGER, C.J., HILL and COBLE, JJ.
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HILL, J.: Public records in Kansas are held in trust for the public by our elected
officials and state agencies. By law, under the Kansas Open Records Act, those records
must remain open and accessible for the use of the public. A deliberate action taken by a
public official that denies reasonable access to public records violates the Act. The
Secretary of State here directed his computer software vendor to turn off a computer
report feature called the provisional ballot detail report. That report had, in previous
litigation between these parties, been held by the district court to be a public record. By
turning off the report capability, the Secretary denied reasonable public access to that
public record and the information within it. That action—choosing to conceal rather than
reveal public records—violates KORA. We must reverse the district court's ruling to the
contrary.
These parties have battled over public records before.
Davis Hammet appeals a district court's grant of summary judgment to the
Secretary of State, Scott Schwab, and the denial of Hammet's motion for summary
judgment. We have gleaned these facts from the competing motions filed in district court.
We focus on one computer-generated report: the provisional ballot detail report.
Whenever a voter casts a provisional ballot in any Kansas election, local election
officials usually note this fact, along with other details, and transmit that information to
the office of the Secretary via computer software used in all elections. This software is
called the Election Voter Information System, often called ELVIS. ELVIS is the
statewide voter registration database for the State of Kansas and is maintained by the
Secretary's office. This software is owned by Election Systems and Software, and the
Secretary contracts with the company to run and maintain ELVIS. The provisional ballot
detail report is one of many reports ELVIS can generate.
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That report accumulates the information contained in the provisional ballot data
received by ELVIS. To be clear about the source of this data, county election officials
input the data for their counties and send it to the Office of the Secretary via ELVIS. No
one in the Secretary's office inputs, modifies, or deletes the information that county
officials enter into ELVIS. Counties are not legally required to keep track of provisional
ballot information, but many do. The counties that do track it will input the data at
different times and in different manners.
This provisional ballot data is perishable. It is not permanently stored anywhere.
With each election cycle, new data replaces the old data. Thus, the data displayed in a
provisional ballot detail report depends on when it is generated in relation to a particular
election. Each election will produce different data.
The subject of this case is Hammet's KORA request to the Secretary for a
provisional ballot detail report. Hammet is the founder of Loud Light, an organization
that works to promote civic participation among young people and mobilize
underrepresented Kansas communities. Hammet and Loud Light use the provisional
ballot detail report to identify individuals who cast provisional ballots and help them cure
the deficiencies in their ballots to ensure that their vote is counted. They also use the
report to conduct election research so they can inform the public and advise state and
local officials how policies and laws impact voters.
In their first lawsuit, the district court ordered the Secretary to print the report.
This case is not the first time Hammet has requested the report. In September
2019, Hammet made a KORA request for the 2018 general election provisional ballot
detail report. After the Secretary denied his request, Hammet sued the Secretary in June
2020. During that lawsuit, Hammet announced that he would seek the same report for the
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2020 primary and general elections. The Secretary resisted the request, arguing that the
report contained confidential information and that it was not a public record subject to a
KORA request.
The district court resolved the dispute a month later by ordering the Secretary to
produce the 2018 report, after ruling the report was a public record under KORA and not
subject to any exceptions. The Secretary had claimed that until Hammet made his
September 2019 request, he did not know that ELVIS was programmed to create a
provisional ballot detail report. The report was disclosed at no extra cost to Hammet.
There was no appeal of that district court's ruling, decision, or order.
After that, Hammet requested updated provisional ballot detail reports for the 2020
primary election on August 4, 2020, and August 11, 2020. The Secretary fulfilled both
requests at no charge.
But two days later, on August 13, 2020, the Secretary asked ES&S, the software
vendor, to remove his office's access to the provisional ballot detail report feature. This
software change was not implemented immediately, so when Hammet requested another
provisional ballot detail report for the 2020 primary election on September 9, 2020, the
Secretary provided a copy of the report the same day, again at no charge.
Finally, on September 13, 2020, ES&S turned off the provisional ballot detail
report option from the ELVIS system in the Secretary's office, at the direction of the
Secretary. This change was not the result from a software upgrade nor any malfunction in
the software. The data remained in ELVIS, but the report could no longer be produced
easily without the appropriate software commands.
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This time, the Secretary denied Hammet access to the report.
Hammet's next KORA request for a provisional ballot detail report for the 2020
primary election—the request that is the basis of this lawsuit—was made on October 6,
2020. Hammet and the Secretary exchanged several emails over the course of the next
week.
At first, the Secretary said it sent Hammet's request to the elections division to run
the report. After that, he said that his office could no longer ask for the provisional ballot
detail report. The Secretary suggested that Hammet could request the reports from all 105
counties since they still had access to the feature that would generate reports. The county
reports would be limited to each county's information.
Hammet and the Secretary continued to communicate about Hammet's record
request. Hammet clarified that his request was not limited to the provisional ballot detail
report, but more generally for the provisional ballot data related to the 2020 primary
election. Hammet suggested that the Secretary could accomplish this by restoring the
provisional ballot detail report feature, creating a custom report, or, as a last resort, by
pulling each individual voter file.
The parties have stipulated that the Secretary could ask ES&S to simply restore
the Secretary's ability to create a provisional ballot detail report. In other words, turn back
on the report feature.
Rather than restore the feature, the Secretary had a different idea. Hammet could,
instead, pay ES&S to gather the data. The company would require a data specialist to
write a script to pull the data. The job would take about three hours at a contractual rate
of $174 per hour. ES&S could not say when the data specialist could begin the job
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because the 2020 election was creating an unpredictable workflow. The Secretary told
Hammet that he would need to pay $522 before the Secretary would ask ES&S to begin
the job. The Secretary did not ask for prepayment for the time his employees would
expend to honor Hammet's request.
The Secretary's idea was for Hammet to pay $522 for a report that Hammet had
received before at no charge.
This suggestion was not agreeable to Hammet. He believed that waiting for ES&S
to pull the data would make him lose access to the data. The provisional ballot data for
the primary election would be cleared so county officials could begin to input provisional
ballot data for the general election. So Hammet decided to send individual KORA
requests to each county asking for the provisional ballot detail reports. Only 13 counties
complied with his request before the canvass. Hammet did not obtain the data he wanted
before the general election.
Hammet sued the Secretary a second time. Once again he was seeking the same
report that he had received in his prior lawsuit. The district court decided the matter on
competing motions for summary judgment. In support of his motion for summary
judgment in district court, Hammet included an email from a county clerk in which the
clerk claimed that they were advised at a state-wide conference not to respond to
Hammet's KORA request until "the Mandated State Requirements that are placed on the
election officer has been completed." The Secretary denied that it instructed counties to
delay their responses to Hammet's KORA requests but asserted that the facts were not
material and thus the dispute should not preclude summary judgment. The district court
held that the provisional ballot detail report ceased being a public record subject to
KORA when ES&S removed the Secretary's ability to produce the report. While the court
found it understandable that Hammet questioned the Secretary's motives, it stated that the
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Secretary's motives were immaterial to the legal questions presented in the parties'
motions for summary judgment.
The Kansas Open Records Act controls this appeal.
The Act is found at K.S.A. 45-215 et seq., Kansas Open Records Act. KORA
defines public records, establishes the public policy that the Legislature intends to
promote through KORA's enforcement, and creates ways to enforce its provisions.
KORA also creates procedures on how requests for public records are to be processed.
All of those procedures are to be guided by reasonableness. There are several parts of
KORA that are pertinent.
The Act defines public records—what is open and what is not—and chisels out a
broad statement of public policy. This stated policy provides a context for how courts,
public officials, state agencies, and the public should interpret this Act. The policy is one
of openness. Found in K.S.A. 45-216(a), the statute says:
"It is declared to be the public policy of the state that public records shall be open
for public inspection by any person unless otherwise provided by this act, and this act
shall be liberally construed and applied to promote such policy."
This policy means that public officials and agencies must reveal public records
and not conceal them, unless there is a legal reason that prevents disclosure of the
information.
And there are many records that are not open to the public. For example, there are
55 types of records mentioned in K.S.A. 2020 Supp. 45-221 that are not open and are not
subject to a KORA request. But those records can be disclosed at the discretion of the
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records custodian. Our Supreme Court has cautioned, however, that these "exceptions are
to be narrowly interpreted," and the burden of proving that an exception applies is on the
agency opposing disclosure. Data Tree v. Meek, 279 Kan. 445, 454-55, 109 P.3d 1226(2005). This interpretation by the court promotes the stated policy of openness. But one
of those exceptions requires some elaboration.
That exception is computer software programs. A public agency need not disclose
software programs for electronic data processing and any accompanying documentation.
K.S.A. 2020 Supp. 45-221(a)(16). We take this to mean that, for example, the software
code that creates ELVIS itself is not subject to a KORA request. But even though an
agency need not provide the actual software programs to fulfill a KORA request, state
agencies are required to "maintain a register, open to the public, that describes: (A) The
information that the agency maintains on computer facilities; and (B) the form in which
the information can be made available using existing computer programs." K.S.A. 2020
Supp. 45-221(a)(16).
The parties here agree that none of those 55 exceptions apply here.
KORA broadly defines public records. They are more than paper and ink pages
shoved into file folders or heavy old bound volumes hoisted onto roller shelves. The
definition of public record includes, "any recorded information, regardless of form,
characteristics or location, which is made, maintained or kept by or is in the possession
of . . . [a]ny public agency." K.S.A. 2020 Supp. 45-217(g)(1)(A). In our view, this
definition includes the data that is encoded in the ELVIS software.
Finally, KORA is to be enforced by the Kansas courts. District courts have
jurisdiction to enforce KORA "by injunction, mandamus, declaratory judgment or other
appropriate order." K.S.A. 2020 Supp. 45-222(a). A district court may also award
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attorney fees if it finds that an "agency's denial of access to the public record was not in
good faith and without a reasonable basis in fact or law." K.S.A. 2020 Supp. 45-222(d).
Civil penalties may be assessed against a public agency according to K.S.A. 2020 Supp.
45-223 for knowingly violating the Act or not intentionally furnishing the information as
required by KORA. The Legislature means what it says: open records in Kansas are to
remain open.
We must approach these summary judgment motions just as the district court did.
The district court entered judgment based on competing motions for summary
judgment. It granted one and denied the other. We are not bound by that legal judgment.
We are in the same position as the district court. Our standard of review for summary
judgment is often mentioned and well-established:
"Appellate courts apply the same rules [as the district court] and, where they find
reasonable minds could differ as to the conclusions drawn from the evidence, summary
judgment is inappropriate. Appellate review of the legal effect of undisputed facts is de
novo." GFTLenexa, LLC v. City of Lenexa, 310 Kan. 976, 982, 453 P.3d 304 (2019).
Therefore, we must consider both Hammet's and the Secretary's motions for summary
judgment anew.
We have two questions to answer in this appeal. First, did the Secretary violate
KORA when he directed ES&S to turn off the provisional ballot report feature? Second,
did the $522 fee charged by the Secretary violate KORA because it was excessive? The
answer to both questions is yes.
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The history between these parties creates a context that guides our decision.
Actions are usually legally significant. The Secretary, at first, refused to provide the
provisional ballot detail report and fought it out with Hammet in district court to prevent
its disclosure. When the district court ordered him to produce the report, ruling that it was
an open record, the Secretary did not appeal that ruling. Instead, the Secretary criticized
the district court's decision, stating in part that "'[t]he Kansas Judiciary, once again, paid
disrespect to the intent of policy.'"
A few days later, knowing that Hammet intended to submit another KORA request
for the most recent provisional ballot detail report, the Secretary asked ES&S to remove
access to the software commands that creates the report. Naturally, the software company
complied with the wishes of its client and turned off the feature.
There is nothing in this record that suggests this request to turn off the report
feature was made to improve ELVIS. There is no record that this feature deletion would
decrease the expenses of the Secretary's office. Turning off this feature is not an
advanced process. Simply put, the Secretary did not want it.
In fact, the Secretary has never really offered a reason why, a few days after he
lost in court on the first report request, he directed ES&S to turn off the report feature.
Instead, he argues in his brief that this is a discretionary management decision that
balances access of the public with the burdens of a KORA request. In his view, KORA
requests should not hold the Secretary hostage. He contends that his motivation to delete
the feature is irrelevant because the report software commands are "a functionality" and
the function is not a public record.
None of these arguments are persuasive. It is true that, as someone who holds
public office, the Secretary does enjoy discretion in how to run that office. Sound
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discretion implies that one who exercises that discretion has a good reason for choosing
one action over another, or for refraining from one action or another. We have never been
given the Secretary's reason for turning off the report feature. How can we say, then, that
he has exercised sound discretion? We do know that official discretion does not grant the
Secretary the right to violate KORA. See K.S.A. 45-218. Deliberate actions have
consequences. Public officials must also respect the public policy formulated by the
Legislature.
Nor can we see how this KORA request held the Secretary hostage, when all it
required was for one of his employees to push a button on the computer. Several such
reports were previously provided by his office to Hammet with apparent ease and at no
additional expense to Hammet. The only difference between those earlier requests and
this request was the Secretary making the report inaccessible to his office and the public
by turning the report feature off. We see no evidence that this KORA request placed an
onerous burden on the Secretary's office. Any burden here is self-imposed and does not
arise from the KORA request.
This report feature may have been of no use to the Secretary but it was useful to
Hammet and the public. And that is the point of open public records. Public access is the
rule, not the exception.
In passing, we must comment on a case both parties cite, Roe v. Phillips County
Hospital, No. 122,810, 2022 WL 414402 (Kan. App. 2022) (unpublished opinion), rev.
granted 315 Kan. ___ (June 17, 2022), but it does not help our analysis. In Roe, a panel
of our court reversed a district court order requiring the hospital to provide some
electronic public hospital records in the format of the requester's choice. 2022 WL
414402, at *1. That is factually different than this case. In Roe, the hospital would
provide the records in a format of the hospital's choosing. Here, the Secretary was not
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going to provide the provisional ballot detail report at all, even though he could ask
ES&S to simply restore the report function.
Turning to the suggested "functionality exception" to KORA, as created by the
district court here, we note that what once was a public record—the provisional ballot
detail report—as ruled by the district court in the parties' first lawsuit, has now been
transformed in that same court a few months later into a mere "functionality." Charmed
by the Secretary's argument, the district court has now ruled that the report is not a public
record subject to KORA disclosure. What has happened to cause this transformation?
There has been only one change that we can see: the Secretary turned the report feature
off.
In a strained analysis, the district court began by determining what information
was "recorded information" and thus a public record subject to disclosure under KORA.
The court noted that "[t]he data regarding provisional ballots input into ELVIS by the
various county election officials is recorded information." In other words, the raw data is
the only public record.
But then the district court held that the statewide provisional ballot detail report
was merely a functionality, describing it as "the result of a set of computer programming
commands that can be removed from or added back to ELVIS" and "a way of packaging
data that may exist in the ELVIS database with proper programming." The court found
that the provisional ballot detail report became "'recorded information' only if [it was]
generated by the use of a computer program." Only when it is generated can the report be
considered a public record.
With these comments, the district court erroneously tried to create a "functionality
exception" to KORA. In other words, the data are the public record but the tools to make
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sense of that data are not a public record. The district court's ruling allows a public
official to say to a KORA requester, "You can have the data because that is recorded
information but we are not going to find it for you because our office cannot access that
'functionality' of the computer and therefore this is not subject to KORA." That ruling
nullifies KORA in this age of computer records.
We see no functionality exception to KORA. In truth, we categorically disagree
with the district court's holding to the contrary. That ruling would allow all computer
records of public information to become inaccessible through the simple manipulation of
what the computer system is asked to do. If we hold that the recorded information of
public records is limited to just the data that is collected and not the programs that make
it useful, there is no other means to access that data—that public record—other than the
computer's software. That effectively seals computer records.
We acknowledge that the binary code—that series of zeros and ones—that make
up the memories stored in a computer are recorded information, but that information is
useless in that form. The fallacy in the district court's ruling is that it makes the recorded
information accessible only to the government if the agency deliberately will not use its
computer to make that public record accessible to the public. The public cannot reach
into ELVIS's computer memories and scoop out handfuls of zeros and ones and thus have
access to what KORA says it has a right to. Computers require software commands that
render the data contained within them usable. This provisional ballot detailed report is
generated from such a computer command. That report feature of ELVIS is a public
record, too. It is subject to a KORA request. Just because a public record must be
generated by a report function, that does not remove that record from the purview of
KORA.
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When the district court ruled in the first case that the report was a public record, it
was right. The data were rendered into usable form—the provisional ballot detail report.
It is not as if Hammet is forcing the Secretary to create a new software feature to
generate and have access to this report. This is a case in which the Secretary deliberately
had the software changed so that Hammet, or anyone else in the public, had no access to
the report. That denial of access violates the spirit of KORA as expressed in K.S.A. 45-
216 that says that public records must be open for inspection to any person. A person
cannot inspect public records stored in a computer without the appropriate software.
Deliberately removing that software capability renders the records unopen for inspection
and violates KORA.
Hammet is entitled to summary judgment on this point.
The fee the Secretary wanted to charge is unreasonable.
The second issue Hammet raises is whether the district court erred in holding that
the Secretary requested a reasonable fee for the provisional ballot data report. He argues
that the fee is unreasonable because the Secretary imposed it with the intent to discourage
Hammet from following through with his KORA request. Hammet also argues that it is
unreasonable for the Secretary to charge $522 for the report when the Secretary could
simply restore its access to the provisional ballot detail report. We find Hammet's
argument persuasive. From the record, it appears the report feature still exists in ELVIS
and the Secretary can ask ES&S for access to it. The Secretary's claim that he no longer
can produce the data to generate a report is disingenuous.
KORA allows public agencies to "prescribe reasonable fees for providing access
to or furnishing copies of public records," subject to certain rules. K.S.A. 2020 Supp. 45-
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219(c). The fees for copies of records "shall not exceed the actual cost of furnishing
copies, including the cost of staff time required to make the information available."
K.S.A. 2020 Supp. 45-219(c)(1). The fees for providing access to records maintained on
computer facilities "shall include only the cost of any computer services, including staff
time required." K.S.A. 2020 Supp. 45-219(c)(2).
The Secretary's three arguments on this issue are unconvincing. First, he argues
that any report generated by ES&S would not be a public record. The definition of
"public agency" in K.S.A. 2020 Supp. 45-217(f)(2)(A) does not include "[a]ny entity
solely by reason of payment from public funds for property, goods or services of such
entity." The Secretary asserts that he lacked the capability to provide the information
Hammet requested and, because the Secretary had to contact a private agency to produce
the requested information, the fee for the production of the report is not subject to
KORA.
The problem with this argument is that the Secretary does possess the requested
public record—the provisional ballot data. Just because the Secretary had to contact a
third party to produce the public record in response to Hammet's KORA request does not
mean that the production of the public record is removed from KORA's requirement that
an agency prescribe reasonable fees for providing access to those records.
The Secretary compares this situation to
"a hypothetical KORA request to the Secretary for access to a historic book, to which the
Secretary responds that it no longer has possession of the book but could obtain it for the
requester from a specialty book seller, if the requester reimbursed the Secretary for the
out-of-pocket cost."
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This is a false analogy. In this case, the Secretary does possess the "book"—the
provisional ballot data—that Hammet requested.
Second, the Secretary argues that the fees it proposed for access to the data were
reasonable and less than the actual cost the Secretary would face in fulfilling Hammet's
KORA request. This was because the fees did not include the cost of agency staff time,
but only included ES&S's quoted fee. The Secretary stresses that agencies may recoup
the actual costs of fulfilling KORA requests. But again, this argument fails because the
record shows that it would cost the Secretary little to nothing to ask ES&S to restore the
report feature and thus have access to the data.
Third, the Secretary notes that Hammet could have sought the information from an
alternative source—the counties. Each county had the ability to generate a provisional
ballot detail report. The Kansas Supreme Court has already rejected the argument and
held that there is no "provision or exemption in KORA allowing a public agency to refuse
to produce records because such records are available from another or a more
'appropriate' source." Wichita Eagle & Beacon Pub. Co. v. Simmons, 274 Kan. 194, 222,
50 P.3d 66 (2002). The Secretary's argument also ignores the practical reality that
requesting a report from each county is much more onerous than requesting a single
report from the State. Hammet's experience with such an endeavor failed.
The Secretary also states that it was "above and beyond its statutory duty" to ask
ES&S if it could generate the requested information. While a "custodian may refuse to
provide access to a public record, or to permit inspection, if a request places an
unreasonable burden in producing public records," there is no indication in the record that
contacting ES&S imposed an unreasonable burden on the Secretary. See K.S.A. 45-
218(e). Many public agencies may use third-party software to maintain public records.
Allowing public agencies to decline KORA requests because they need not work with the
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companies they have hired to maintain the records software is not supported by the
language or spirit of KORA.
The Secretary "admits that he could simply ask ES&S to restore the statewide
provisional ballot detail report functionality, but he has not done so." In light of that, we
hold that it is not reasonable to charge a fee of $522 when the Secretary could provide the
report for no cost. We limit this analysis to the unique facts here where the report feature
already existed and the Secretary had it removed. This is not a case in which Hammet is
asking for the creation of a new software feature.
Our ruling
What can be turned off can be turned on. When the Secretary directed ES&S to
turn off the computer feature that generates the provisional ballot detail report—a report
correctly declared to be a public record—he denied reasonable public access to that
public record. That denial of public inspection of a public record violates the Kansas
Open Records Act. The Secretary cannot now charge a fee for this report in conformity
with his prior actions simply because he had the report feature turned off. Under the
circumstances presented here, where several reports have been given to Hammet at no
charge, to charge a fee now would be unreasonable.
We therefore reverse the district court's grant of summary judgment to the
Secretary and its denial of Hammet's motion for summary judgment. We remand to the
district court with directions to enter judgment for Hammet over the Secretary. We direct
the court to order the Secretary to restore the provisional ballot detail report feature to
ELVIS so the public can have access to that public record.
Reversed and remanded with directions.
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