On Tuesday, January 26, 2016, the Senate Committee on Judiciary introduced SB 361, a bill that would amend the definition of “public records” to include state-related communications made from personal devices. The bill was the result of a recommendation of the Kansas Judicial Council’s Open Records Advisory Committee reached during several meetings in the fall of 2015.
I was graciously permitted to attend meetings of the committee. One of the concerns raised during the meetings, although not addressed in the recommended legislation, is related to the automatic deletion of text messages. Generally, cellphone service providers have different policies about how text messages are retained on devices, and the likelihood that each company’s policy complies with the Government Records Preservation Act (GRPA) is remote.
To be fair, the Governor’s Office has not been completely silent on the issue of electronic records retention. In an executive order issued on December 11, 2014,the governor reminded state employees that “[s]tate business-related calls or data on an employee’s personal mobile device may become the subject of a contention that it is subject to disclosure under the Kansas Open Records Act, if the Act is deemed to apply in those circumstances. Employees should follow the requirements of policies and directives related to open records, state business-related records, and records retention.”
Thus, all state agencies and employees must be cognizant of their duties to preserve electronic public records that may be subject to deletion due to service provider policy or digital space limitations. Moreover, as the governor’s Executive Order suggests, the GRPA and the Kansas Open Records Act (KORA), are closely related, and the GRPA should be viewed as a complementary statute to be read together with KORA.
Unfortunately, although the GRPA appears in K.S.A. Chapter 45, along with KORA, even open government advocates such as myself are much more familiar with KORA than any records preservation laws. The Attorney General’s KORA trainings do not cover records retention, likely in large part to the fact that records retention laws are in a different statute section.
However, similarities between the Acts merits closer examination of GRPA. During the Open Records Advisory Committee meetings this fall, there was much discussion related to privacy interests in government-related emails. However, the GRPA resolves that issue. Its central provision, K.S.A. 45-403(a), clarifies that state officials and employees have no privacy interest in state business-related documents: “[a]ll government records …shall be public property and shall not be mutilated, destroyed, transferred, removed, damaged or otherwise disposed of, in whole or in part, except as provided by law, or as may be authorized in the retention and disposition schedules.” (emphasis added.) Thus, by law, state agencies have no private interest in any government documents whatsoever because they are the property of the state.
The strongest similarity between the GRPA and the KORA is that the GRPA’s definition of government records nearly mirrors the new definition of “public records” set forth in SB 361. The GRPA defines “government records” as “all …documents…regardless of physical form or characteristics, storage media or condition of use, made or received by an agency in pursuance of law or in connection with the transaction of official business or bearing upon the official activities and functions of any governmental agency.” Moreover, even the current version of KORA defines “public records” as “documents, regardless of form or characteristics.”
Thus, by statute, the definitions of “public records” and “government records” are substantially similar. Although KORA does not include any provisions related to record retention, state agencies need to be aware of their obligations to retain records under the GRPA. If an official or employee believes electronic records may be automatically or accidentally destroyed, and if those records are government property as defined by GRPA, agencies, officials and employees are in violation of state law if text messages are not preserved.
Max Kautsch is the Kansas legal hotline attorney for the Kansas Press Association and the Kansas Association of Broadcasters. Send him an email here.