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Kansas Open Records Act (KORA) update, effective 7/1/2016

If you or your staff members use text messages or private email accounts to conduct University business, please read this information.

The 2016 Kansas Legislature amended the Kansas Open Records Act (KORA).  Under current law, text messages you sent from your personal phone and emails sent from a non-KU account were considered private, not public, records, and they were therefore not subject to the Kansas Open Records Act – even if they related to University business.  That changes on July 1, 2016.  After July 1, the Kansas Open Records Act will define “public records” as:

Any recorded information, regardless of  … location, which is made, maintained or kept by or is in the possession of (A) Any public agency; or (B) any officer or employee of a public agency pursuant to the officer’s or employee’s official duties and which is related to the functions, activities, programs or operations of any public agency. (K.S.A. 45-217(g)(1).) 

The result of this change to the statute is that starting July 1, the text messages on your phone and emails in your private email account that relate to University business will be subject to requests made to the University under the Kansas Open Records Act.  So will the records of telephone calls -- and perhaps even voice messages on your cell phone.  Records not related to University business will not be affected.

The University is preparing for this change – and you have some time to prepare for it also.  Of course, government records should be kept as required by the University’s record retention policy.  Generally speaking, routine correspondence should be maintained until it is no longer useful, and then it may be destroyed or deleted.  Correspondence that states or forms the basis for policy, sets precedent, or records important events in the operational and organizational history of the University should be maintained for five years and then sent to University archives.  It seems unlikely that text messages will qualify as these types of policy documents.  Thus, generally speaking, they could be deleted or destroyed once they are no longer useful. 

This change will affect how the University processes open records requests.  If your records are requested, you may be asked to search your private emails and phone records for records that relate to your University work, and to provide those records, where responsive, to the University administration for review and possible production.  If you use the auto-forward function for all emails, you may want to stop doing so, and instead use your KU email account for University work and stop using your private account for KU functions.  Given the easy accessibility of free email services, that might be a good way to easily separate your personal and university email lives.

Please note that being a “public record” does not necessarily mean your records would ultimately be produced.  KORA contains some 55 exceptions that may ultimately protect your records from disclosure.  Before this amendment, however, we never got to that step.  Now we will, and if you maintain records on your phone or personal email account, they will (if requested) need to be reviewed under those exceptions.

If you have questions, please contact Mike Leitch, associate general counsel, at mleitch@ku.edu or 785-864-3276.


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