Roe v. Phillips Cnty. Hosp.

522 P.3d 277

Kelly ROE, Appellee,

v.PHILLIPS COUNTY HOSPITAL, Appellant.

No. 122,810

Supreme Court of Kansas.

Opinion Filed January 6, 2023.

Quentin M. Templeton, of Forbes Law Group, LLC, of Overland Park, argued the cause, and Keynen J. (K.J.) Wall, Frankie J. Forbes, and Russell J. Keller, of the same firm, and John F. McClymont, of McClymont Law Office, PA, of Norton, were with him on the briefs for appellant.

Maxwell E. Kautsch, of Kautsch Law L.L.C., of Lawrence, argued the cause and was on the brief for appellee, and Kelly Roe, appellee pro se, was on the pro se brief.

Maxwell E. Kautsch, of Kautsch Law L.L.C., of Lawrence, was on the brief of amici curiae Kansas Press Association, Inc., Kansas Association of Broadcasters, Inc., Kansas Sunshine Coalition for Open Government, Inc., Kansas Institute for Government Transparency, Inc., and Lex Lumina, LLC.

The opinion of the court was delivered by Wilson, J.:

This interlocutory appeal after summary judgment poses a single question of law: when a person requests an electronic copy of a public electronic record under the Kansas Open Records Act, must a public agency provide that copy in electronic format? The answer is "yes."

FACTS AND PROCEDURAL BACKGROUND

Because this case reaches us on an interlocutory appeal from the district court's grant of partial summary judgment, the salient facts are uncontroverted. As set forth by the district court, the relevant facts are as follows:

"1. [Phillips County] Hospital is a ‘public agency’ within the meaning of K.S.A. 45-217 and is therefore subject to KORA.

"2. On [various dates] Roe made written requests under KORA for copies of records made, maintained, kept, or in the possession of Hospital, including copies of existing electronic records in their native format.

....

"4. Hospital's employees use computer programs, such as Microsoft Word, PowerPoint, and Excel to create (i.e., make) electronic files.

"5. ... Hospital does not claim it is incapable of producing the requested electronic records in the format(s) in which each was made, maintained, kept, or in the possession of Hospital.

....

"9. Individual cells in the Excel spreadsheets Hospital creates may include formulas."

Phillips County Hospital refused to produce for Roe the requested electronic records in native (i.e., "electronic") format but expressed willingness to provide copies of the electronic records in hard copy (i.e., paper) format.

In response, Roe complained several times to the Kansas Attorney General's office about Hospital's position. In a letter addressing Roe's complaints, the AG's Open Government Enforcement Unit (OGEU) concluded that " ‘KORA contains no language requiring records be provided in their native format,’ and ‘a public agency retains the discretion to determine the format in which the records are produced.’ " While acknowledging that attorney general opinions are not legally binding, we note the OGEU's response reached a conclusion generally different than those expressed in previous AG opinions, including Att'y Gen. Op. Nos. 88-152 ("any person has the right to obtain a computerized voter registration list in computer format if the public agency has the capability of providing the record in that format"), 89-106 ("Computerized public information must be provided in the form requested if the district has the capability of producing that form."), 95-64 (same), and 2009-14 (referencing county's "requirements under KORA to provide access to records in any format available for a requestor").

Roe also filed a petition in district court to enforce her KORA rights. Ultimately, both Roe and Hospital submitted competing motions for summary judgment, though the district court struck Hospital's motion because of its late filing. In its order, the district court granted partial summary judgment to Roe. After reviewing KORA and several AG opinions, the district court concluded: "While true that KORA does not specifically say copies must be produced in electronic format, that is implied." The court thus ordered Hospital to provide Roe with electronic copies of the records, as she requested, with certain exceptions not relevant to our analysis.

On appeal, a panel of the Court of Appeals reversed the district court. The panel reasoned that KORA was silent on the question of format in which a record is produced on request. It held "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." Roe v. Phillips County Hospital , No. 122,810, 2022 WL 414402, at *5 (Kan. App. 2022) (unpublished opinion). The panel read K.S.A. 2020 Supp. 45-221(a)(16) and K.S.A. 45-219(g) to conclude 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." 2022 WL 414402, at *5. The panel also considered the definition of "copies" to conclude that hard copies of electronic records would satisfy Hospital's duty to provide "copies" under KORA. 2022 WL 414402, at *6-7.

The panel held that KORA gives an agency discretion over how it provides records and "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." Roe , 2022 WL 414402, at *8. The panel thus concluded that the district court erred, although it also remanded the matter to the district court for the parties to better argue the question of metadata, noting the parties' agreement "that no expert testimony was presented ... regarding the production of different computer formats or metadata." 2022 WL 414402, at *10.

Judge Cline wrote separately to argue that electronic records fit the definition of "public record" in K.S.A. 2020 Supp. 45-217(g). Roe , 2022 WL 414402, at *15 (Cline, J., concurring). And while Judge Cline believed that Roe could not "dictate" the format in which Hospital produced its records, she 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." 2022 WL 414402, at *15 (Cline, J., concurring).

Roe petitioned for review of the panel's determination that KORA does not require a public agency to provide copies of electronic public records in the requested electronic format, even if the agency has the capability to do so. She did not challenge the panel's other holdings, which involved a claim of attorney-client privilege. Roe , 2022 WL 414402, at *11-15. This court granted review on her sole issue.

ANALYSIS

The question before us is whether KORA requires a public agency to provide someone with requested electronic copies of public electronic records. We conclude that the plain language of the relevant statutes, when read together, supports the existence of such a duty.

Standard of review.

When the parties agree that the facts are undisputed, an appellate court reviews a district court's decision to grant summary judgment de novo. E.g., First Sec. Bank v. Buehne , 314 Kan. 507, 510, 501 P.3d 362 (2021) ; N. Nat. Gas Co. v. ONEOK Field Servs. Co., LLC , 310 Kan. 644, 650, 448 P.3d 383 (2019). We likewise review issues of statutory interpretation de novo, as with other questions of law. E.g., State v. Scheuerman , 314 Kan. 583, 587, 502 P.3d 502, cert. denied ––– U.S. ––––, 143 S. Ct. 403, ––– L.Ed.2d –––– (2022).

" ‘It is a fundamental rule of statutory constructions, to which all other rules are subordinate, that the intent of the legislature governs if that intent can be ascertained. The legislature is presumed to have expressed its intent through the language of the statutory scheme it enacted. When a statute is plain and unambiguous, the court must give effect to the intention of the legislature as expressed, rather than determine what the law should or should not be. Stated another way, when a statute is plain and unambiguous, the appellate courts will not speculate as to the legislative intent behind it and will not read such a statute so as to add something not readily found in the statute. [Citations omitted.]’ " Wichita Eagle & Beacon Pub. Co. v. Simmons , 274 Kan. 194, 214, 50 P.3d 66 (2002) (quoting In re Marriage of Killman , 264 Kan. 33, 42-43, 955 P.2d 1228 [1998] ).

When a statute is plain and unambiguous, "the court need not resort to canons of statutory construction or legislative history." State v. Wells , 296 Kan. 65, 83, 290 P.3d 590 (2012). On the other hand, "if a statute's language is ambiguous, we will consult our canons of construction to resolve the ambiguity." Johnson v. U.S. Food Serv. , 312 Kan. 597, 601, 478 P.3d 776 (2021).

We recently clarified that "even when the language of the statute is clear, we must still consider various provisions of an act in pari materia to reconcile and bring those provisions into workable harmony, if possible." Bruce v. Kelly , 316 Kan. 218, 224, 514 P.3d 1007 (2022). Put another way, "[W]hen interpreting a statute, we do not consider isolated parts alone, but all relevant parts together." 316 Kan. at 230, 514 P.3d 1007. Thus, we may consider a statute in pari materia even if the statute appears to be "plain and unambiguous" as well as to "provide substance and meaning to a court's plain language interpretation of a statute." 316 Kan. at 224, 514 P.3d 1007.

Although it does not impact our analysis here, we also briefly note that KORA itself presents another wrinkle in statutory construction: "It is declared to be the public policy of the state that...