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![handle is hein.sag/sagks0001 and id is 1 raw text is: January 3, 2002
ATTORNEY GENERAL OPINION NO. 2002-1
John T. Bird
Hays City Attorney
113 West 13th Street
P.O. Box 727
Hays, Kansas 67601
Re:
Public Records, Documents and Information--Records Open to the
Public--Definitions; Electronic Mail Between City Council Members
Synopsis:
The Kansas Open Records Act (KORA), K.S.A. 45-215 et seq.,
applies to computer records as well as paper records. A record
created by use of electronic mail (e-mail) may be subject to the KORA
if the electronic record in question meets the definition of public
record found in K.S.A. 45-217. Whether e-mail communications
between or involving individual city commissioners are public
records will depend upon whether such e-mail communications are
made, maintained, or kept by or [are] in the possession of a public
agency, and whether any of the exceptions to the definition apply.
The statutory definition of the term public agency includes political
and taxing subdivisions and their officers or employees. However, the
definition of a public record excludes records that are made,
maintained or kept by an individual who is a member of . .. the
governing body of any political or taxing subdivision. Thus, if a
specific e-mail communication is not made, maintained or kept by the
city, but rather is exclusively made, maintained or kept only by the
individual city commission members, it is not a public record as
defined by K.S.A. 45-217. The result would be the same if the city
commissioners were passing handwritten or typed notes or letters to
each other. The electronic nature of the record does not change the
rules under the KORA. If a particular record does meet the definition
of a public record, it would then become necessary to determine
whether any mandatory or discretionary closure provision may be
applicable to that particular record. Cited herein: K.S.A. 21-3821; 45-
215; 45-216; 45-217; 45-221, as amended by L. 2001, Ch. 211, § 13;
45-401; 45-402; 75-3501; K.S.A. 2000 Supp. 75-4317; 75-4709.
Dear Mr. Bird:
As attorney for the City of Hays, you request our opinion on whether electronic mail (e-
mail) communications between or involving individual city commissioners are public
records, as that term is defined in the Kansas Open Records Act (KORA),('-) under
circumstances where the records are not, and have never been, in the city's
possession.
You have opined that individual city commissioners do not meet the definition of a
public agency subject to the KORA, and that the city is not the record custodian of
some e-mail sent or received by individual city commissioners. Thus, while the City of
Hays has indicated that it will provide copies of e-mail residing on the various City-](ViewImageLocal?handle=hein.sag/sagks0001&div=1&collection=&method=preview&ext=.png&size=3)