Text messages between Kris Kobach and John Merrill

To Whom It May Concern:

Pursuant to the Kansas Open Records Act (K.S.A. 45-215), I hereby request the following records:

- Any and all SMS messages (aka, "text messages") between Kansas Secretary of State Kris Kobach (cell phone number 913-638-5567) and Alabama Secretary of State John Merrill (cell phone number 334-328-2787) that were sent or received from June 28, 2017, to July 28, 2017, inclusive, referring or relating to the Presidential Advisory Commission on Election Integrity and/or Alabama voter data.

I am a full-time reporter for the online news site ThinkProgress, based in Washington, D.C., and am requesting these records as part of the news-gathering process. The requested documents will be made available to the general public, and this request is not being made for commercial purposes.

In the event that there are fees, I would be grateful if you would inform me of the total charges in advance of fulfilling my request. I would prefer the request filled electronically, by email attachment if available or CD-ROM if not.

Thank you in advance for your anticipated cooperation in this matter. I look forward to receiving your response to this request within 3 business days, as the statute requires.

Sincerely,
Joshua Eaton

Dear Ms. Becker,

Thank you for your response. You exempted Sec. Kobach's text messages with Alabama Secretary of State John Merrill under K.S.A. 217(g)(1)(B). That statute defines a public record as "any recorded information, regardless of form, characteristics or location, which is made, maintained or kept by or is in the possession of ... 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."

The statute was specifically designed to prevent public employees from avoiding disclosure under KORA by switching to private email addresses or cell phones ("regardless of ... location"). So your office cannot exempt the records I request simply because they are on a private device. Its definition of a public record is also broadly worded to include various types of digital records, including text messages ("regardless of form, characteristics"). So your office cannot exempt the records I request simply because they are text messages rather than, say, emails or printed documents.

The records I am requesting are also "maintained or kept by or is in the possession of" Sec. Kobach as part of his official duties as Kansas's chief election official. They are communications between one secretary of state and another secretary of state regarding official state business. that clearly makes them "related to the functions, activities, programs or operations" of the Secretary of State's Office. They are government records.

The legislature amended KORA last year with the specific intent of including text messages or emails sent on private devices while conducting official business. That is what precisely what I am requesting here, and I would ask that you please process my request accordingly.

Thank you for your time and help.

Sincerely,
Joshua Eaton

Dear Ms. Becker,

Thank you for your email. Since K.S.A. 217(g)(1) defines a public record as recorded information maintained by "any officer or employee of a public agency," I believe Sec. Kobach's personal text messages directly related to official state business fall within the statute — regardless of whether your office maintains them. Whether or not you office maintains the records is immaterial to the statute so long as an officer or employee of your office maintains them. Clearly, Sec. Kobach maintains his text messages — who else could? — and they are therefore subject to KORA if they refer or relate to official state business.

Alabama Secretary of State John Merrill revealed the existence of the text messages in question, and their general subject matter, during the course of an on-the-record interview with a ThinkProgress reporter.

Since KORA applies to records maintained by officers or employees of a public agency, and since Sec. Kobach certainly maintains his own text messages, please review them for release to me under KORA. If you do not, I may pursue administrative and judicial appeals.

Please also note that your office and/or Sec. Kobach may have legal obligations to retain the text messages in question under K.S.A. 45-403(a) and E.O. 14-06 (available at http://kautschlaw.com/wp-content/uploads/2016/01/exec-order-14-06-mobile-device-policy.pdf).

Thank you for your time and help.

Sincerely,
Joshua Eaton

Hi there,

We apologize for the confusion caused by our automated follow ups. Though a response was provided by your office on August 24, a reply sent by the requester the next day instigated the messaging system anew. I've copied his message below. Thanks so much for your help.

Best wishes,
Beryl, MuckRock
__________________________________________

Dear Ms. Becker,

Thank you for your email. Since K.S.A. 217(g)(1) defines a public record as recorded information maintained by "any officer or employee of a public agency," I believe Sec. Kobach's personal text messages directly related to official state business fall within the statute — regardless of whether your office maintains them. Whether or not you office maintains the records is immaterial to the statute so long as an officer or employee of your office maintains them. Clearly, Sec. Kobach maintains his text messages — who else could? — and they are therefore subject to KORA if they refer or relate to official state business.

Alabama Secretary of State John Merrill revealed the existence of the text messages in question, and their general subject matter, during the course of an on-the-record interview with a ThinkProgress reporter.

Since KORA applies to records maintained by officers or employees of a public agency, and since Sec. Kobach certainly maintains his own text messages, please review them for release to me under KORA. If you do not, I may pursue administrative and judicial appeals.

Please also note that your office and/or Sec. Kobach may have legal obligations to retain the text messages in question under K.S.A. 45-403(a) and E.O. 14-06 (available at http://kautschlaw.com/wp-content/uploads/2016/01/exec-order-14-06-mobile-device-policy.pdf).

Thank you for your time and help.

Sincerely,
Joshua Eaton