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Judge allows Hunter Health Clinic to block newspaper's open-records request for e-mails [The Wichita Eagle :: ]
[February 13, 2014]

Judge allows Hunter Health Clinic to block newspaper's open-records request for e-mails [The Wichita Eagle :: ]

(Wichita Eagle (KS) Via Acquire Media NewsEdge) Feb. 14--A Sedgwick County District Court judge ruled Thursday that Hunter Health Clinic can block The Wichita Eagle's open-records request for e-mails sent through Wichita State University's account.

As part of Judge Faith Maughan's decision, which she read in court, she said the e-mails are owned by those who wrote them and not WSU and therefore are not public records.

The newspaper was seeking the e-mails in connection with its reporting on financial troubles at Hunter, a Wichita nonprofit that serves underinsured or uninsured patients.

On May 20, The Eagle, under the Kansas Open Records Act, submitted a records request to WSU seeking e-mails to or from the accounts of Jaya Escobar and Richard Muma that reference the clinic.

Escobar, assistant director of Upward Bound at WSU, is the clinic's board chair and has been on the board for almost six years. Muma, who is WSU's associate vice president for academic affairs, stepped down as the clinic's board chair in October 2012.

In June, Hunter sued The Eagle and WSU to stop the newspaper's efforts to obtain the e-mails.

"The court finds that simply using WSU's e-mail (account) does not transfer complete ownership of that e-mail to WSU," Maughan said in her ruling.

In responding after the decision, Lyndon Vix, The Eagle's attorney, said: "I think employers are going to be somewhat surprised to learn that they don't own the e-mails that are sent and received on their servers and that they are really owned by their employees.

"I think WSU will be surprised, particularly since it has an internal policy that says computers and other electronic media are the property of WSU." Ted Ayres, WSU's general counsel, who was in court, said the judge's ruling was not "not necessarily inconsistent with our policy. I think our policy is meant to be advisory on this issue." "I think her analysis makes sense. I believe she did a nice job in looking at the case in totality under the law." WSU's policy regarding the use of its e-mail system states: "Users should understand that communications made using University computing and information technology resources are considered to be non-confidential communications and that they should have no expectation of privacy regarding such communications. Such communications may be subject to disclosure through legal proceedings and/or may also be subject to access and disclosure pursuant to the Kansas Open Records Act." Jessica Skladzien, attorney for Hunter Health Clinic, said in an e-mail: "Any private organizations whose members use a governmental e-mail account can breathe a collective sigh of relief following Judge Maughan's ruling.

"By determining the e-mails at issue were not 'public records,' Judge Maughan correctly ruled that KORA should not be expanded to require the disclosure of private records." Vix also questioned whether Hunter had the right to inject itself into a KORA request to a public agency.

Maughan "said they would suffer harm and that was enough," Vix said. "But nothing in KORA says a third party can intervene, and that should be the test." The Eagle had argued that even if the e-mails were privately owned they still would be public records because Hunter receives between 75 to 95 percent of its money from public sources, largely through federal grants.

The judge ruled that Hunter wasn't a public agency, which the KORA defines as an entity that receives state money, and it therefore could not be considered to be publicly funded.

But Vix said the judge was "reading that provision narrowly" and equating a publicly funded entity with a state agency.

"It's not the same," he said. "By requiring Hunter to be a 'public agency' in order to be considered 'publicly funded' she was essentially requiring that the funding come from the state. That's not what the statute says." Reach Rick Plumlee at 316-268-6660 or Follow him on Twitter: @rickplumlee.

___ (c)2014 The Wichita Eagle (Wichita, Kan.) Visit The Wichita Eagle (Wichita, Kan.) at Distributed by MCT Information Services

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