Kansas Attorney General Opinion 2015-010

April 28, 2015
ATTORNEY GENERAL OPINION NO. 2015- 10
The Honorable Anthony Hensley
State Senator, Nineteenth District
State Capitol, Room 318-E
300 S.W. 10th Avenue
Topeka, Kansas 66612
Re: 	Public Records, Documents and Information–Records Open to the Public–
Open Records Act; Certain Records Not Required to be Open
Synopsis: 	State employees who utilize a private device and do not utilize public
resources to send an email from his or her private email account (private
email) are not a “public agency” as defined by the Kansas Open Records
Act (KORA) in K.S.A. 2014 Supp. 45-217(f). 	Accordingly, their private
emails are not records subject to the provisions of the KORA. 	Cited
herein: K.S.A. 45-216; K.S.A. 2014 Supp. 45-217; K.S.A. 45-218.
Dear Senator Hensley:
As the State Senator for the 19 th District, you request our opinion on an issue related to
the Kansas Open Records Act (KORA). 1 	In your letter dated February 11, 2015, you
ask:
[w]hether an e-mail sent by a state employee from his or her private e-mail
account related to functions, activities, programs or operations funded by
public funds or records is within the meaning of “public record” under
K.S.A. 45-217(g)(1)?
In short, we think the answer is “no.”
1 K.S.A. 45-215 et seq.

Senator Anthony Hensley
Page 2
For purposes of this opinion, we will assume that the email “sent from his or her private
account” also was sent from a private device and that neither publicly owned nor
publicly controlled equipment, nor other public resources, were used to access the
employee’s private email account. 	Throughout this opinion, we will use the term
“private email” to reference this combination of assumed facts.
We believe your question about the scope of application of the KORA to state employee
privately held emails is one of first impression in Kansas. 	The answer depends on
several statutory provisions, which we set forth here for ease of reference. 	K.S.A. 45-
216(a) states:
It is declared to be the public policy of the state that public records shall be
open for inspection by any person unless otherwise provided by this act,
and this act shall be liberally construed and applied to promote such
policy.
The KORA states that “[a]ll public records shall be open for inspection by any person,
except as otherwise provided by this act, . . . .”2 K.S.A. 2014 Supp. 45-217(g) sets forth
the definition of public record. K.S.A. 2014 Supp. 45-217(g)(1) states, in pertinent part:
“Public record” means any recorded information, regardless of form or
characteristics, 	which 	is 	made, 	maintained 	or 	kept 	by 	or 	is 	in 	the
possession of any public agency . . . .
K.S.A. 2014 Supp. 45-217 sets forth the definition of public agency. K.S.A. 2014 Supp.
45-217(f)(1) states, in pertinent part:
“Public agency” means the state or any political or taxing subdivision of
the state or any office, officer, agency or instrumentality thereof, or any
other entity receiving or expending and supported in whole or in part by
the public funds appropriated by the state or by public funds of any
political or taxing subdivision of the state.
We have previously opined that the KORA’s definition of “public record” can include
email messages because an email message is “recorded information” that may be
“made, maintained, or kept by” an agency or is “in the possession” of an agency. 3
To determine the answer to your inquiry, we must analyze the following statutory
question: Whether a “state employee” when engaged in the sending of private emails is
a “public agency” within the meaning of K.S.A. 2014 Supp. 45-217(f). 	Only if we
2 K.S.A. 45-218(a).
3 Att’y Gen. Op. No. 2002-1 (concluding that email can be a “public record” under the KORA).

Senator Anthony Hensley
Page 3
determine that the answer to this question is yes do we reach the issue of whether a
state employee private email is a record pursuant to K.S.A. 2014 Supp. 45-217(g).
The plain language of the KORA provides for two alternate tests to determine the
presence of a “public agency” covered by the KORA. 	If, and only if, at least one of
these tests is satisfied, does there exist a “public agency” within the meaning of the
KORA.
First, a “public agency” means “the state or any political of taxing subdivision of the
state or any office, officer, agency or instrumentality thereof, . . .”4 	The terms “state
employee” and “employee” are not included in this list. 	In addition, the other terms do
not 	apply 	because 	your 	question 	about 	the 	private 	emails 	of 	state 	employees
necessarily presumes the presence of a living person. 5
Second, 	a 	“public 	agency” 	means 	“any 	other 	entity 	receiving 	or 	expending 	and
supported in whole or in part by the public funds appropriated by the state or by public
funds of any political or taxing subdivision of the state.”6 	To apply this second test to
your question, we must consider whether the phrase “any other entity receiving or
expending and supported in whole or in part by the public funds appropriated by the
state or by public funds of any political or taxing subdivision of the state” includes state
employees. We think the answer is no. Although a state employee is, presumably, paid
by 	the 	state 	and 	therefore 	“supported 	in 	whole 	or 	in 	part 	by 	the 	public 	funds
appropriated by the state,” we do not think a “state employee” is an “entity” within the
meaning of this statutory test. There is no definition of “entity” in the statute, so we look
to 	the 	common 	definition 	and 	ordinary 	meaning 	of 	the 	term. 	An 	entity 	is 	“[a]n
organization (such as a business or a governmental unit) that has a legal identity apart
from its members or owners.” 7 	Thus, the ordinary meaning of “entity” does not include
any flesh-and-blood being, such as an employee.
Thus, reading all of the above analyses together leads to the conclusion that state
employees who send private emails, as previously defined, are not a “public agency”
4 K.S.A. 2014 Supp. 45-217(f)(1).
5 We interpret your question necessarily to presume the presence of a flesh-and-blood individual who
sends a private email. 	We reach this conclusion because we cannot conceive a situation in which a
public agency other than a living person could maintain and use a “private” email account; by definition,
an email generated from, for example, an email account registered to a state agency, office or
instrumentality would be “made, maintained or kept” or “in the possession of” that agency, office or
instrumentality and thus could not be a “private email.” In addition, you specifically ask about the actions
of a “state employee,” who presumably must be a living person as opposed to an agency, office,
instrumentality or other such organization or entity. Only the word “officer” refers to a living person but
state law distinguishes between officers and employees. See Att’y Gen. Op. No. 1999-11.
6 K.S.A. 2014 Supp. 45-217(f)(1).
7 Black’s Law Dictionary (10 th Ed 2014)(defining “entity”); Merriam-Webster.com/Dictionary/Entity
(accessed 4/27/2015).

Senator Anthony Hensley
Page 4
within the meaning of the KORA. 8 Accordingly, these private emails of state employees
are not public records subject to the provisions of the KORA.
Sincerely,
Derek Schmidt
Kansas Attorney General
Cheryl L. Whelan
Assistant Attorney General
DS:AA:CLW:sb
8 Because of this determination, we are not required to analyze whether the exclusions in K.S.A. 2014
Supp. 45-217(f)(2) apply.