Public records, Excel spreadsheets, and textualism: Kansas Supreme Court affirms the separation of powers

Within the American system of government, legislative authority is the sole prerogative of the people’s elected representatives in the legislative branch.[1] It is therefore “fundamental” that in applying and interpreting legislative enactments, courts “must give effect to the intention of the legislature as expressed, rather than determine what the law should or should not be.”[2] And executive branch agencies may not claim “discretion” to enforce their preferred reading of a law at the expense of the legislature’s plain intent.[3] 

The Kansas Supreme Court recently upheld this separation of powers in Roe v. Phillips County Hospital.[4] The issue before the Kansas Supreme Court was whether under the Kansas Open Records Act (KORA), a public agency must provide copies of electronic records in their native format.[5] The court answered that question in the affirmative[6] by applying the “fundamental rule” that “[w]hen a statute is plain and unambiguous, the court must give effect to the intention of the legislature as expressed.”[7]

Through KORA, the Kansas legislature created a regime broadly requiring that government records “be open for inspection” by members of the public.[8] KORA provides in relevant part that “[a]ny person may make abstracts or obtain copies of any public record to which such person has access under this act.”[9]

Plaintiff Kelly Roe made various written requests for copies of electronic records in the possession of Phillips County Hospital, a public agency subject to the requirements of KORA.[10] Although the hospital was willing to provide hard copies of these records—many of which were Excel spreadsheets containing formulas—it refused to produce them in an electronic form.[11]

As a result of the hospital’s refusal, Roe made several complaints to the Kansas Attorney General’s Open Government Enforcement Unit (OGEU).[12] The OGEU responded by concluding that because KORA contains no express requirement that “records be provided in their native format,” a public agency subject to the Act “retains the discretion to determine the format in which the records are produced.”[13] This was a departure from OGEU’s previous written conclusions on the subject.[14]

Ms. Roe then initiated litigation to enforce her rights under KORA. The trial court granted partial summary judgment in Ms. Roe’s favor, concluding that KORA “implie[s]” copies of electronic records “must be produced in electronic format.”[15] On appeal, a panel of the Kansas Court of Appeals reversed the district court, agreeing with the government that because “KORA was silent on the question of format in which a record is produced on request,” agencies have “discretion” over how they may provide records.[16]

The Kansas Supreme Court granted review and unanimously reversed the Court of Appeals.[17] Justice Evelyn Wilson delivered the opinion of the court.[18]

The court began its analysis by affirming that “[i]t 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.”[19] The court explained that because “[t]he 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.”[20]

Applying these fundamental principles, the court began by interpreting KORA’s mandate that “[a]ny person may make abstracts or obtain copies of any public record to which such person has access under this act.”[21] There was no question that the hospital is an agency subject to the Act. [22] And no party argued that Ms. Roe was not entitled to the records she had requested.[23] As such, the central dispute was what KORA meant when it spoke of “copies.”[24] Although KORA does not define “copies,” the court observed that “courts ordinarily give plain words their commonly understood meaning,” and therefore it looked to several dictionary definitions.[25] Based on those dictionary definitions, the court agreed with the court of appeals that “the plain meaning of ‘copy’ denotes duplication with essentially perfect fidelity.”[26]

But the court’s analysis did not end there. The court explained that in analyzing the plain text of a statute, courts must not “consider isolated parts alone.”[27] Rather, a court must consider “all relevant parts together.”[28] As such, the court also considered the meaning of “‘public records,’ to which the term ‘copies’ applies.”[29] The court reasoned that because KORA dictates that a “public record” is “any recorded information” in the possession of a public agency “regardless of form, characteristics or location,” an agency is not at liberty to “split a public record into its constituent parts” by “divorcing form from raw data or information.”[30] Instead, the legislature obliged the agency “to faithfully duplicate the public record in all its respects.”[31]

As such, the court concluded that although the plain meaning of “copies” might allow for reproduction of an electronic record in hard copy, reading “copies” together with KORA’s definition of “public record” does not allow for such a result. [32] Rather, for a “copy” to be an “accurate reproduction” of a public record” it must itself “mirror the content of that record. . . .”[33]

Applying these requirements to the electronic records requested by Ms. Roe, the court observed that an Excel spreadsheet will often have “embedded components”—such as formulas.[34] A hard copy of an Excel spreadsheet may indeed show the relevant numbers.[35] But without the embedded formulas, it will not show how those numbers were “generated.”[36] And information pertaining to how those numbers were generated is itself an integral part of the record.[37] Because a hard copy cannot display embedded information, the court concluded that the “only accurate reproduction of an electronic file is a copy of the electronic file.”[38]

The court’s rather technical discussion of dictionary definitions and Microsoft Excel might seem somewhat arcane. But Roe represents a significant affirmation of the principle of textualism—and thus the separation of powers—by the Kansas Supreme Court. Three broader points are worthy of further emphasis.

First, in recognition of the legislature’s sole prerogative over policymaking, the court firmly rejected any idea that it should “speculate as to the legislative intent behind” KORA or “determine what the law should or should not be.”[39] Instead, the court concluded that the logical starting point in its analysis—and the best indicator of legislative intent—is the “plain and unambiguous” wording of the statute.[40]

Second, the court declined to assign persuasive weight to the executive branch’s preferred interpretation of the statute. Early in its opinion, the court observed the inconsistencies between OGEU’s written conclusion in Ms. Roe’s case and its previous conclusions about electronic records.[41] To a casual observer, this agency flip-flopping might seem to be relevant. But the court’s treatment of this issue was limited to a terse observation that “attorney general opinions are not legally binding.”[42] Instead of spending time analyzing the executive branch’s current or prior interpretations of KORA, the court focused its efforts on ascertaining the legislature’s intent by focusing on KORA’s plain text.[43]

Finally, the court was thorough in its analysis of KORA’s text. The court recognized that where a statute’s text is ambiguous, tools such as canons of construction may be useful in ascertaining legislative intent.[44] However, the court was not hasty in performing the first of its analytical duties. Unlike the court of appeals—which concluded that KORA’s lack of explicit “mandatory language” dealing with electronic records rendered the text ambiguous and gave the hospital “discretion” to produce records in the format of its choice—the Kansas Supreme Court did not give up so quickly.[45] Rather, the court thoroughly analyzed the plain meaning of “copies” in concert with KORA’s definition of “public records” to conclude that the legislature had clearly and unambiguously forbidden the hospital’s conduct.[46]

Roe is an affirmation of the principles of textualism—and thus the separation of powers—from the Kansas Supreme Court.

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at [email protected].