BROOKE v. REED RN MPH CPH (2025)

¶1 The question presented is whether the Oklahoma Open Records Act (ORA), 51 O.S.Supp.2019 §§ 24A.1 to 24A.40, requires a public body to provide email records in their native file format, which contains embedded metadata. We hold it does not.

FACTS AND PROCEDURAL HISTORY

¶2 Plaintiff/Appellant Nicholles Brooke made an open records request to the Oklahoma State Department of Health (OSDH) on March 23, 2020. His request was for “[a]ll correspondence with attachments and other public records regarding the COVID-19 pandemic sent to Governor Stitt, or anyone working in the Governor's office, by the State Epidemiologist or others in the Department of Health.” The request was limited to seven search terms in correspondence transmitted between January 1, 2020 and March 23, 2020. Plaintiff's accompanying email stated his request was “to inspect or receive digital copies.” Brooke indicated he preferred to receive the documents via email but would be willing to inspect them in person as well. OSDH immediately responded acknowledging receipt of the request. Brooke sent a follow up email on March 31, 2020 inquiring about the status of his request. OSDH immediately replied that it was still processing the request and the records would be made available at the earliest opportunity.

¶3 Sixteen days after making his initial request, on April 8, 2020, Brooke filed a petition in district court seeking a declaratory judgment that OSDH had violated the ORA and an injunction requiring OSDH to produce the requested public records. The district court denied OSDH's motion to dismiss in which OSDH argued Brooke's request was still being processed and he could not file suit until his request had been denied. See 51 O.S. § 24A.17(B).  ¹

¶4 OSDH provided Brooke several batches of records between August 2020 and February 2021. In a brief filed by Brooke on April 5, 2021, he complained that he could not determine whether the correspondence were to the Governor's office and that the records were in Portable Document Format (PDF), which did not include metadata. He contended the metadata found in native files was essential for organizing, searching, and understanding the records. Brooke argued some of the emails produced were missing information about the sender, recipient, and the date the message was sent.  ² OSDH responded that the ORA requires only that the records be “made available,” not that the records be provided in any specific format, and, therefore, PDF copies complied with the statute. OSDH further asserted that providing records in PDF format is a reasonable procedure to protect the integrity of the records. OSDH pointed out that native files can be manipulated, and it would be difficult to ensure redactions are maintained.

¶5 The district court held an evidentiary hearing on Brooke's request for injunctive relief on May 12, 2021 and August 17, 2021. During the hearing, Brooke clarified that his request for “digital copies” was a request for copies of the native files, which contain embedded metadata. His position was the OSDH must provide digital copies of the original digital files, and a PDF is not sufficient. The district court did not issue a ruling after the hearing. Rather, the court ordered the parties to confer on the production of electronic records. It was undisputed that OSDH hired additional staff in order to respond to Brooke's records request and that OSDH provided Brooke more than 11,000 pages of records in PDF format. In a status report, Brooke stated that in February 2022 OSDH did produce some email messages in their native file format.

¶6 In October 2021, OSDH filed three separate motions for summary judgment arguing Brooke was not denied the records requested, that OSDH was not required to provide the records in their native format, and that the request caused excessive disruption to OSDH's activities. Brooke objected arguing that motions for summary judgment filed after trial were untimely.

¶7 The district court heard the motions on August 3, 2023 and granted summary judgment to OSDH, finding OSDH was not required to provide native files under the ORA and that OSDH had substantially complied with all its duties under the ORA by producing records in machine-readable PDF format. Brooke appealed. The Court of Civil Appeals reversed, finding OSDH was required to turn over the native files if it had the capability to do so. COCA held that the ORA requires agencies to produce the record in the format it was made and stored, i.e., in its native file format. After OSDH's petition for rehearing was denied, it sought a writ of certiorari, which this Court granted on March 25, 2025.

STANDARD OF REVIEW

¶8 The material facts are not in dispute. This appeal requires us to interpret provisions of the ORA. Such an issue of statutory construction presents a question of law, which we review de novo. See Fanning v. Brown, 2004 OK 7, ¶ 8, 85 P.3d 841, 845. Appellate courts have plenary, independent and nondeferential authority to determine whether the trial court erred in its legal rulings. Id.

ANALYSIS

¶9 The question presented is whether the ORA requires a public body to provide copies of email records in their native file format, which includes embedded metadata.  ³ The ORA provides: “All records of public bodies and public officials shall be open to any person for inspection, copying, or mechanical reproduction” and “[a] public body must provide prompt, reasonable access to its records.” 51 O.S. § 24A.5, 24A.5(6). “Record” is defined by the ORA as “all documents including, but not limited to, any book, paper, photograph, microfilm, data files created by or used with computer software, computer tape, disk, record, sound recording, film recording, video record or other material regardless of physical form or characteristic ․” 51 O.S. § 24A.3(1). Brooke requested certain correspondence with attachments. Such correspondence primarily consisted of email messages, which are data files created and used with the computer software Microsoft Outlook.

¶10 The native file format for Outlook email messages is a Personal Storage Table (PST). A PST file is used to back up, export, and import Outlook data, including email messages, contacts, appointments, tasks, and notes.  ⁴ With PST files, one can open and view email messages directly in Outlook. The “internet header” at the beginning of a PST file contains metadata about the email message.  ⁵ “The simple definition of metadata is ‘data about data.’ That is, it provides details about data that is separate from the content of the data itself.” Annie Badman, What is Metadata? IBM, https://www.ibm.com/think/topics/metadata (Oct. 21, 2024). BLACK'S LAW DICTIONARY, 12th ed. (2024) defines “metadata” as “[s]econdary data that organize, manage, and facilitate the use and understanding of primary data.”  ⁶ In an Outlook email message, the internet header's metadata in a PST file reveals technical details about the message, such as sender, recipient, date and time the message was sent and when message transfer occurred, the email software used by the sender, messages in the same conversation thread, the computer or device used to send the message, and the servers the message passed through.  ⁷ A PDF shows the full body of the email message and some of these details, but it does not contain the same metadata as a PST file.

¶11 This is a situation where an illustration is helpful. OSDH provided Brooke the following Outlook email message in PDF format:

ROA, Tab 6, Hr'g Tr., May 12, 2021, ex. J at 567. The PDF copy identifies the sender, recipient, date and time sent, whether there are any attachments, and the full body of the message.

¶12 Now, compare the PDF to a PST file. The following is an example of the internet header in an Outlook email message PST file:

from mail.litwareinc.com ([10.54.108.101]) by mail.proseware.com with Microsoft SMTPSVC(6.0.3790.0);Wed, 12 Dec 2007 13:39:22 -0800Received: from mail ([10.54.108.23] RDNS failed) by mail.litware.com with Microsoft SMTPSVC(6.0.3790.0);Wed, 12 Dec 2007 13:38:49 -0800From: “Kelly J. Weadock” To: Cc: Subject: Review of staff assignmentsDate: Wed, 12 Dec 2007 13:38:31 -0800MIME-Version: 1.0Content-Type: multipart/mixed;Microsoft Office Outlook, Build 12.0.4210X-MimeOLE: Produced By Microsoft MimeOLE V6.00.2800.1165Thread-Index: AcON3CInEwkfLOQsQGeK8VCv3M+ipA==Return-Path: kelly@litware.comMessage-ID: X-OriginalArrivalTime: 12 Dec 2007 21:38:50.0145 (UTC)

View Internet Message Headers in Outlook, Microsoft, https://support.microsoft.com/en-us/office/view-internet-message-headers-in-outlook-cd039382-dc6e-4264-ac74-c048563d212c#tab=classic_outlook (last visited Nov. 24, 2025). This is what metadata looks like. Brooke contends he is entitled to the PST files that contain this type of information about the email messages, as opposed to the PDF above. Notably, the PDF contains the full body of the message. On the other hand, the internet header in the PST file does not show the content of the message. The “correspondence” Brooke requested is found in the PDF copy. To view the actual correspondence with the PST file, Brooke would need to import the PST file and view the message using Outlook software.

¶13 The pertinent question is whether the phrase “data files created or used with computer software,” 51 O.S. § 24A.3(1), means a data file's metadata.  ⁸ The fundamental purpose of statutory construction is to ascertain and give effect to the intent of the Legislature. See Rickard v. Coulimore, 2022 OK 9, ¶ 5, 505 P.3d 920, 923. To do this, we first look to the language of the statute. Id. If the statutory language is clear and unambiguous, this Court must apply the plain and ordinary meaning of the words. Id.; 25 O.S.2011 § 1. Only when the legislative intent cannot be determined from the statutory language due to ambiguity or conflict should rules of statutory construction be employed. See Rickard, 2022 OK 9, ¶ 5, 505 P.3d at 923.

¶14 A statute is ambiguous if the language is susceptible to more than one reasonable interpretation. See Childers v. Arrowood, 2023 OK 74, ¶ 15, 541 P.3d 825, 831. “Record” is defined clearly by 51 O.S. § 24A.3(1) to include “data files created by or used with computer software.” This language is not ambiguous. “Data files” may be broad or vague in meaning, but the term is not ambiguous.  ⁹ It is not susceptible to more than one interpretation. Therefore, we look only to the words of the text. We presume the Legislature “expressed its intent and intended what it expressed.” See Thurston v. State Farm Mut. Auto. Ins. Co., 2020 OK 105, ¶ 16, 478 P.3d 415, 420 (quoting Heath v. Guardian Interlock Network, Inc., 2016 OK 18, ¶ 14, 369 P.3d 374, 379). “Data files” is to be given its plain and ordinary meaning.

¶15 We find the ordinary, everyday meaning of “data files” does not include embedded metadata. The term “data files” is broad, but it does not mean data about data.

¶16 Additionally, nothing in the ORA requires that copies of records be produced in the specific format requested.  ¹⁰ The federal Freedom of Information Act (FOIA) requires that “an agency shall provide the record in any form or format requested by the person if the record is readily reproducible by the agency in that form or format.” 5 U.S.C.A. § 552(a)(3)(B). The ORA contains no such provision. The ORA does not require the production of documents in any specific format or even that the records be produced in the format in which they were created or maintained. Rather, the ORA gives the agency leave to determine how it will accept and respond to records requests. See 51 O.S. § 24A.5; Wagner v. Sheriff of Custer Cty., 2021 OK CIV APP 20, ¶¶ 8-11, 492 P.3d 1240, 1242-44. The ORA requires only that the records be made available for inspection, copying, or mechanical reproduction during regular business hours and that “[a] public body must provide prompt, reasonable access to its records[.]” 51 O.S. § 24A.5. Importantly, the statute also authorizes the public body to establish reasonable procedures which protect the integrity and organization of its records and to prevent excessive disruptions of its essential functions.” 51 O.S. § 24A.5(6); see also 51 O.S. § 24A.2 (“Except as may be required by other statutes, public bodies do not need to follow any procedures for providing access to public records except those specifically required by the Oklahoma Open Records Act.”). While a public body is free to produce records in the requested format, it is under no obligation to do so. See Wagner, 2021 OK CIV APP 20, ¶ 9, 492 P.3d at 1243 (sheriff free to email or mail copy of incident report to out of state requester but not required to do so). Making PDF copies of Outlook email messages is a reasonable procedure that protects the integrity of the records. PDF copies also give the requester reasonable access to email records.

¶17 Brooke requested “correspondence” records. In this case, the correspondence records were email messages. As demonstrated above, the PDF copies of Outlook email messages provided Brooke reasonable access to the correspondence he requested.  ¹¹

¶18 When the ORA was adopted in 1985, the Oklahoma Legislature was simply not contemplating the metadata Brooke is requesting. The definition of “record” has not changed since the Act's adoption in 1985. Outlook was not released by Microsoft until 2012.  ¹² While metadata certainly existed in the early years of the digital age, the Oklahoma Legislature did not intend for the public to have access to metadata, as we know it today.

¶19 Determining how advancements in technology should affect government transparency and the public's access to public records are matters of policy for the legislative branch. It is the Oklahoma Legislature's duty to determine what constitutes the inspection, copying, or mechanical reproduction of modern data files. Should a public body be required to produce electronic records in a specific format, e.g. printed hard copies, PDFs, native files? Should a public body be required to produce electronic records in the format in which they were created and maintained? Should a public body be required to produce records in the format requested if the records can be readily reproduced in that format? Should a public body be required to produce native files as a convenience to computer scientists or tech savvy citizens who wish to organize and review records with automated software? Metadata can mean many things. If the ORA includes metadata, the Oklahoma Legislature needs to define the term.  ¹³ If the Legislature grants the public access to digital copies of native files, what reasonable procedures must public bodies adopt to protect the integrity of its records as well as confidential and sensitive information contained in metadata?  ¹⁴ These questions (and more) are policy issues requiring study and debate that goes far beyond the Court's role of interpreting statutes.

¶20 Finally, this appeal also raises a procedural issue. Brooke argues OSDH's motions for summary judgment were untimely, because they were not filed twenty days before the trial on May 12, 2021. See Okla.Dist.Ct.R. 13, 12 O.S., ch. 2, app. He contends the trial court erred by granting summary judgment after a trial on the merits. OSDH asserts that none of the hearings should be characterized as a trial on the merits. There was no scheduling order; no pre-trial conference; no pre-trial briefs or exchange of witness and exhibits lists; and the event is listed on the docket as “open records injunction/evidentiary hearing” and was never referred to as a “bench trial” on the docket.

¶21 During the May and August 2021 hearings, the trial court received witness testimony and other evidence. However, ultimately, the evidentiary hearing revealed that the material facts were not in dispute. The case turned on a pure question of law: does the ORA require a public body to produce email records in native file format? We hold the trial court did not err in permitting and ruling on the motions for summary judgment.  ¹⁵

CONCLUSION

¶22 We hold that the ORA does not require a public body to provide copies of email records in their native file format.

OPINION OF THE COURT OF CIVIL APPEALS IS VACATED; ORDER OF THE DISTRICT COURT IS AFFIRMED.

¶1 This case can be resolved by answering a narrow question: Did the State Health Department provide Nicholles Brooke the records he requested? I believe the answer is plainly “yes,” so we need not decide whether agency metadata is subject to the Open Records Act.

¶2 On May 23, 2020, Brooke sent the Department of Health the following request: “I request to inspect or receive digital copies of all correspondence with attachments & other public records regarding the COVID-19 pandemic sent to Governor Stitt, or anyone working in the Governor's office, by the State Epidemiologist or others in the Department of Health.”  ¹ Ultimately, the Department of Health produced records Brooke requested in PDF format, which is a type of digital file.

¶3 Nonetheless, Brooke claims he is entitled to receive the metadata--data about data--relating to these records. The problem is that Brooke did not ask for the metadata before filing suit, and the Open Records Act allows civil suits only for “records requested and denied prior to filing of the civil suit ․” 51 O.S. § 24A.17(B)(1).

¶4 While a state agency must “provide prompt, reasonable access to its records,” it “may establish reasonable procedures which protect the integrity and organization of its records and to prevent excessive disruptions of its essential functions.” 51 O.S. § 24A.5(6). When “correspondence with attachments” is requested pursuant to the Open Records Act, I have no difficulty concluding it is procedurally reasonable for an agency to produce responsive emails and attachments in PDF format. Similarly, it was reasonable for the Department of Health to produce the emails in the style it chose based on Brooke's request. The emails were produced in the same general format and contained the same general information that a state employee would see when viewing or printing the emails from the agency's email platform.

¶5 In this case, the Department of Health produced what one would reasonably assume Brooke wanted based on the words of his request. We need not decide whether the Open Records Act requires production of metadata if specifically requested. I concur in result and would affirm the district court's grant of summary judgment to Defendant.

¶1 I dissent from the majority's judgment vacating the opinion of the Court of Civil Appeals (COCA) and affirming the trial court's summary judgment and dismissal of Mr. Brooke's civil suit. I would withdraw certiorari as improvidently granted, thereby leaving in place COCA's reversal of the trial court. Furthermore, I disagree with the majority's reasoning that finds public agencies are not required to provide access to public records existing in the format of metadata, which is just one more reason to leave COCA's opinion in place. The reasons for my dissent are set forth below.

¶2 First of all, the majority addresses an issue different from that raised by the Commissioner of Health in his petition for certiorari, demonstrating the majority's determination to address an issue they deem more important--despite its waiver by the Petitioner. Rather than addressing the question “squarely present[ed]” in the Commissioner's petition for certiorari “of whether 51 O.S. § 24A.17(B)(1) bars a Court from ordering native file format production when the original prelitigation request does not ask for native file format,” Def.’s Pet. for Cert. 3, Oct. 29, 2024, the majority analyzes 51 O.S.Supp.2020, §§ 24A.3(1) and 24A.5 to answer the question of “whether the O[pen ]R[ecords ]A[ct] requires a public body to provide copies of email records in their native file format, which includes embedded metadata,” Majority Op. ¶ 9. The Petitioner's question concerns the applicability of an estoppel provision contained in section 24A.17 of the ORA, while the question framed and answered by the majority concerns the definition of a “record” set forth in section 24A.3 that must be produced under section 24A.5 of the ORA--i.e., different issues involving different statutory provisions. The majority's opinion doesn't even discuss section 24A.17 anywhere in its “Analysis” section, see Majority Op. ¶¶ 9--21; the only mention of that statute appears in their recitation of the “Facts and Procedural History” of this case, as the Health Commissioner had initially opposed Mr. Brooke's lawsuit with an unsuccessful motion to dismiss that invoked section 24A.17, see Majority Op. ¶ 3 & n.1. In view of all this, it would seem the majority's opinion about whether a public agency's “records” include the underlying metadata is merely advisory.

¶3 On the flip side, the Health Commissioner did not raise on certiorari the issue addressed by the majority. He thereby waived this Court's review of the issue the majority decides. Okla. Sup. Ct. R. 1.180(b), 12 O.S.2021, ch. 15, app. 1 (“Issues not presented in the petition for certiorari may not be considered by the Supreme Court.”); Beyrer v. The Mule, LLC, 2021 OK 45, ¶ 9 & n.7, 496 P.3d 983, 987 & n.7 (“Preserved issues decided by the appellate court and which are later omitted from the petition for certiorari will usually not be considered by this Court during certiorari review.” (citing Barnett v. Barnett, 1996 OK 60, ¶ 13 n.12, 917 P.2d 473, 477 n.12)), Consequently, COCA's ruling on that issue is left intact and is unassailable as the law of the case. See, e.g., State ex rel. Dep't of Transp. v. Little, 2004 OK 74, ¶ 26, 100 P.3d 707, 721 (“Hough v. Leonard[, 1993 OK 112, 867 P.2d 438,] teaches that this court will not review any issue decided adversely to a party by the Court of Civil Appeals unless that issue is retendered for review by certiorari.”); Mosier v. Okla. Prop. & Cas. Ins. Guar. Ass'n, 1994 OK 145, ¶ 15, 890 P.2d 878, 880--81 (“Several issues raised in the petition in error and addressed by the Court of Appeals were not raised by the petition for certiorari․ No party has, on certiorari, requested that this Court review these other issues. As such the resolution of those issues by the Court of Appeals is not subject to our review.” (citing Ford v. Ford, 1988 OK 103, ¶ 13, 766 P.2d 950, 955)). We cannot decide an issue that the Health Commissioner failed to raise.

¶4 Looking through the record, it further appears the Health Commissioner hasn't previously raised the issue set forth in his petition for certiorari at the district court level. I see where he raised a very similar argument at the motion-to-dismiss stage and again at the motion-for-summary-judgment stage based on the same statute, 51 O.S.Supp.2020, § 24A.17(B)(1). See ROA, Vol. 3, Doc. 11, Def.’s 1st Mot. Mums. J.: Pl. Was Never Denied Records 9, Oct. 15, 2021; Majority Op. ¶ 3 (discussing the content of the motion to dismiss). But in those motions, the Health Commissioner was arguing that Mr. Brooke “was never denied any records prior to filing his lawsuit,” Def.’s 1st Mot. Mums. J., supra, at 13 (emphasis added), not that Mr. Brooke never requested native file format records and was therefore never subsequently denied such records. To reach the issue actually raised in the Health Commissioner's petition for certiorari, we must remand the case--as suggested by the Court of Civil Appeals, see COCA's Op. ¶ 18 (“We acknowledge that disclosure under the ORA is subject to statutory limitations, including limitations on the disclosure of sensitive personal information and that there may be individual records in OSDH's possession that would not be subject to disclosure without redaction. Additionally, the record in this case indicates that OSDH might not currently have the technological means to follow other requirements of the act while producing the record in its native format. These issues, and more, constitute material questions of fact that must be explored on remand.“ (emphasis added))--for the district court to determine in the first instance.  ¹ The Health Commissioner is essentially trying to bootstrap a new argument into this appeal and repackage his previous arguments with a new spin, so that he can present us with an alternative basis for affirming summary judgment in his favor. We shouldn't take the bait. We can't consider on appeal his previous arguments based on section 24A.17 of the ORA because orders denying motions to dismiss and motions for summary judgment are unappealable, see State ex rel. Bd. of Regents of Univ. of Okla. v. Lucas, 2013 OK 14, ¶ 11, 297 P.3d 378, 384--85; Myers v. Mo. Pac. R.R. Co., 2002 OK 60, ¶ 39, 52 P.3d 1014, 1034; and we can't consider his new spin on those arguments as set forth in the petition for certiorari because such arguments were not made below, see Lee v. Bueno, 2016 OK 97, ¶ 37 n.7, 381 P.3d 736, 749 n.7 (“Matters not first presented to the trial court for resolution are generally not considered on appeal.”). We must simply withdraw certiorari as improvidently granted.

¶5 If the majority insists, however, upon issuing an advisory opinion on whether a public agency's “records” include the underlying metadata, I disagree with their ultimate conclusion on that issue. COCA got it right. Based on the plain language of the ORA, “[a]ll records of public bodies and public officials shall be open to any person for inspection, copying, or mechanical reproduction,” and that “means all documents, including, but not limited to, any book, paper, photograph, microfilm, data files created by or used with computer software, computer tape, disk, record, sound recording, film recording, video record or other material regardless of physical form or characteristic, created by, received by, under the authority of, or coming into the custody, control or possession of public officials, public bodies, or their representatives in connection with the transaction of public business, the expenditure of public funds or the administering of public property.” 51 O.S.Supp.2020, §§ 24A.3(1), 24A.5 (emphasis added). That language is rather broad and all-encompassing. It should be broad enough to include PST files “created by [and] used with” the Microsoft Outlook “computer software” that has been “created by” State Health Department officials “in connection with the transaction of public business.” The majority's assertion that the statutory language “data files” unambiguously “does not include embedded metadata” or “data about data,” see Majority Op. ¶ 15, is nothing more than ipse dixit. If the State Health Department generates records containing data about data, the language of sections 24A.3(1) and 24A.5 is broad enough to require production of those records.

¶6 More importantly, the majority's interpretation completely ignores other state's precedents based upon open records acts with language similar to Oklahoma's act, as discussed in COCA's opinion. See COCA's Op. ¶¶ 11--14. In 2009, the Arizona Supreme Court held that the electronic version of a record, including any embedded metadata, is subject to disclosure under Arizona's public records law:

The court of appeals ․ erred, however, by parsing the electronic version of [the public official]’s notes and focusing separately on the metadata contained within the document. The pertinent issue is not whether metadata considered alone is a public record. Instead, the question is whether a “public record” maintained in an electronic format includes not only the information normally visible upon printing the document but also any embedded metadata. Here, the City does not dispute that [the public official]’s notes are public records kept in an electronic format.

The metadata in an electronic document is part of the underlying document; it does not stand on its own. When a public officer uses a computer to make a public record, the metadata forms part of the document as much as the words on the page. Arizona's public records law requires that the requestor be allowed to review a copy of the “real record.” It would be illogical, and contrary to the policy of openness underlying the public records laws, to conclude that public entities can withhold information embedded in an electronic document, such as the date of creation, while they would be required to produce the same information if it were written manually on a paper public record.

We accordingly hold that when a public entity maintains a public record in an electronic format, the electronic version of the record, including the embedded metadata, is subject to disclosure under our public records law.

Lake v. City of Phoenix, 222 Ariz. 547, 218 P.3d 1004, 1007--08 (2009) (footnote and citations omitted); accord Paint Township v. Clark, 109 A.3d 796, 804 (Pa. Commw. Ct. 2015) (“[W]e note that metadata is inseparable from Electronic Stored Information (ESI), and, being a conjoined part of ESI documents, metadata must be disclosed along with an ESI document.”); O'Neill v. City of Shoreline, 170 Wash.2d 138, 240 P.3d 1149, 1153 (2010). Similarly, the Kansas Supreme Court held in 2023 that a public hospital was required to produce electronic records in their native format:

The parties agree Hospital is a public agency and the records requested--at least, those that are the subject of Roe's petition for review--are public records to which Roe has access under the act. There is no question that Hospital possesses the requested electronic records and can produce them in electronic format, and Hospital does not claim any exemption preventing their disclosure. The parties’ only dispute, then, centers on what KORA [i.e., the Kansas Open Records Act] means when it speaks of “copies”

As every actor here thus far has identified, KORA does not define “copies.” But because courts ordinarily give plain words their commonly understood meaning, the panel [of the Court of Appeals] cited these definitions to divine the meaning of “copies”:

“Black's Law Dictionary defines ‘copy’ as ‘[a]n imitation or reproduction of an original.’ Black's Law Dictionary 423 (11th ed. 2019). Similarly, the Webster's dictionary defines a ‘copy’ as ‘a thing made just like another; imitation of an original; full reproduction or transcription.’ Webster's New World College Dictionary 328 (5th ed. 2014). It is apparent that the common usage and plain meaning of the term ‘copies’ allows for reproductions which may involve numerous formats or mediums. Employing these dictionary definitions, we are persuaded that, provided the public agency delivers an accurate reproduction of the original electronic records to the requester, KORA's requirement that a copy of the public record must be provided is satisfied.” Roe v. Phillips County Hospital, 2022 WL 414402, at *6 (Kan. App. Feb. 11, 2022).

We agree with the panel's underlying logic to this extent: the plain meaning of “copy” denotes duplication with essentially perfect fidelity, or what the panel called an “accurate reproduction.” But to confirm the validity of the panel's application of this logic to electronic records, we must also consider the meaning of “public records,” to which the term “copies” applies in K.S.A. 45-219(a). On this point, KORA clarifies that “ ‘[p]ublic record’ means any recorded information, regardless of form, characteristics or location, which is made, maintained or kept by or is in the possession of: (A) Any public agency.” (Emphasis added.) K.S.A. 2020 Supp. 45-217(g)(1).

This means an agency cannot split a public record into its constituent parts: all recorded information within a record is the record, and thus must be disclosed unless specifically exempted by KORA. If a member of the public submits a KORA request for a “copy” of a non copyrighted video, for example, a copy of only the video's audio component constitutes only a part of the requested record. Put another way, the record itself includes not only the information it contains, but also the form in which the information is stored. The form itself is a secondary kind of information that is also public. KORA does not contemplate government agencies divorcing form from raw data or information. Thus, KORA obliges the agency to faithfully duplicate the public record in all its respects--“regardless of form, characteristics or location.” K.S.A. 2020 Supp. 45-217(g)(1).

․

While the panel correctly determined that the plain meaning of “copies” “allows for reproductions which may involve numerous formats or mediums,” it missed the critical implication that any “accurate reproduction” of a public record must mirror the content of that record, unless specifically exempted․ The only accurate reproduction of an electronic file is a copy of the electronic file, which can easily be provided by, for example, email or thumb drive.

We thus reverse the panel's decision ․

Roe v. Phillips Cty. Hosp., 317 Kan. 1, 522 P.3d 277, 281--82 (2023) (citation omitted). The Arizona, Pennsylvania, Washington, and Kansas decisions should be considered in our analysis of section 24A.3’s definition of “record,” particularly insofar as the Kansas statute contains similar language. Compare 51 O.S.Supp.2020, § 24A.3(1) (“ ‘Record’ means all documents ․ regardless of physical form or characteristic, created by, received by, under the authority of, or coming into the custody, control or possession of public officials, public bodies, or their representatives ․”), with Kan. Stat. Ann. § 45 217(g)(1) (2020) (“ ‘Public record’ means any recorded information, regardless of form, characteristics or location, that is made, maintained or kept by or is in the possession of: (A) Any public agency ․”). The majority's decision not to discuss these cases indicates they have no convincing response to the logic discussed therein. I find the Arizona and Kansas cases highly persuasive and would reach the same conclusion they reached, were the issue squarely presented.

¶7 Perhaps the most disappointing aspect of this case is how long it has taken for Mr. Brooke to get a response to his Open Records request. When he questioned Governor Stitt's initial response to the COVID-19 pandemic as evidenced in a tweeted selfie the Governor took with his kids, all unmasked, eating at a local restaurant, Mr. Brooke sought information that would help him know what advice the Governor was being given by health officials.  ² So he sought records at a point in time when the general public was just becoming aware of COVID-19, asking the State Department of Health to produce correspondence “regarding the COVID 19 pandemic sent to Governor Stitt, or anyone working in the Governor's office, by the State Epidemiologist or other in the Department of Health” spanning a date range from January 1 to March 23, 2020. ROA, Vol. 2, Doc. 6, Def.’s Trial Ex. 1. Here we are nearly six years later, and Mr. Brooke still hasn't gotten the documents he requested. That is a lack of transparency if I've ever seen it. Maybe COVID-19 isn't the urgent issue everyone thought it was back in 2020, but I would hope for better responses when another matter of public importance arises.

¶8 For all these reasons, I respectfully dissent.

FOOTNOTES

1.   The ORA provides: “Any person who requests and is denied access to records of a public body or public official: 1. May bring a civil suit for declarative or injunctive relief, or both, but such civil suit shall be limited to records requested and denied prior to filing of the civil suit ․” 51 O.S. § 24A.17(B)(1).

2.   Brooke also asserted that the PDF export of a Microsoft Excel spreadsheet for the hospital bed census report was not complete, as the columns for each row were printed on six non-consecutive pages, some columns were truncated and did not show the full hospital name, and a PDF of a spreadsheet did not reveal formulas used. However, the record shows that the spreadsheets were eventually provided in a format to Brooke's satisfaction, and this is not an issue raised on appeal.

3.   Surprisingly, very few state courts have addressed this issue. The leading decisions conclude the metadata embedded in electronic records is a public record. See, e.g., Roe v. Phillips Cty. Hosp., 317 Kan. 1, 522 P.3d 277, 280-282 (2023) (holding copies must be in the format in which they are stored); O'Neill v. City of Shoreline, 170 Wash.2d 138, 240 P.3d 1149, 1152-54 (2010) (holding metadata associated with an email is a public record); Lake v. City of Phoenix, 222 Ariz. 547, 218 P.3d 1004, 1007-08 (2009) (holding when a public record is maintained in electronic format, the public is entitled to an electronic version of the record, including any embedded metadata).

4.   Export Emails, Contacts, and Calendar Items to Outlook Using a .pst File, MICROSOFT, https://support.microsoft.com/en-us/office/export-emails-contacts-and-calendar-items-tooutlook-using-a-pst-file-14252b52-3075-4e9b-be4e-ff9ef1068f91#picktab=classic_outlook (last visited Nov. 24, 2025); Import Email, Contacts, and Calendar from an Outlook .pst File, MICROSOFT, https://support.microsoft.com/en-us/office/import-email-contacts-and-calendarfrom-an-outlook-pst-file-431a8e9a-f99f-4d5f-ae48-ded54b3440ac#picktab=classic_outlook (last visited Nov. 24, 2025).

5.   View Internet Message Headers in Outlook, MICROSOFT, https://support.microsoft.com/en-us/office/view-internet-message-headers-in-outlook-cd039382-dc6e-4264-ac74-c048563d212c#tab=classic_outlook (last visited Nov. 24, 2025).

6.   The term “metadata” was not added to BLACK'S LAW DICTIONARY until the 9th edition was published in 2009. BLACK'S indicates 1970 was the earliest known use of the word.

7.   Supra note 5.

8.   The Legislature has amended 51 O.S. § 24A.3 several times since Brooke filed the underlying action. However, the language “data files created by or used with computer software” has been left unchanged.

9.   “A word or phrase is ambiguous when the question is which of two or more meanings applies; it is vague when its unquestionable meaning has uncertain application to various factual situations.” Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 32 (2012).

10.   The district court denied OSDH's Second Motion for Summary Judgment, which was based on the argument that Brooke's pre-litigation request did not specifically request native files and, therefore, he was not denied the records requested. OSDH raises this issue again in its petition for certiorari. However, because the ORA does not require that records be produced in the specific format requested, the issue does not resolve the appeal.

11.   We note that if a public body responded to a records request made by a person without computer science knowledge or access to Microsoft Outlook by providing him PST files of email messages, the requester would have a strong argument that the native files did not give him reasonable access to the records requested.

12.   Press Release, Microsoft, Microsoft Officially Launches Outlook.com (Feb. 18, 2013), https://news.microsoft.com/source/2013/02/18/microsoft-officially-launches-outlook-com/.

13.   Other state legislatures have amended their laws to define metadata for purposes of open records. See, e.g., Md. Code Ann., General Provisions, § 4-205 (West 2015) (defining metadata).

14.   It has been observed that it is much easier to recover redacted information in native files: “If records requested under FOIA were required to be produced in native format, any confidential information that was redacted by the agency has the possibility of being recovered by an enterprising adversary.” Christopher R. Meltzer, Note, More Than Just Ones and Zeros: The Reproducibility of Metadata Under the Freedom of Information Act, 9 I/S: J.L. & POL'Y FOR INFO. SOC'Y 327, 348 (2013).

15.   Even if the hearing constituted a bench trial, OSDH's motions for summary judgment may be recast and treated as a motion for directed verdict.

1.   Pet., Ex. A.

1.   The district court needs to assess whether Mr. Brooke's March 23, 2020 e-mail requesting “to inspect or receive digital copies“ of the relevant records is factually sufficient to constitute a request for documents in their electronic format or native file format. See ROA, Vol. 2, Doc. 6, Def.’s Trial Ex. 1. The Health Commissioner proffers that “Plaintiff did not ask for documents in their native file format or even use the phrase ‘electronic format’ until well after the lawsuit was filed,” and that serves as his basis for seeking relief under section 24A.17(B)(1) of the ORA. Def.’s Pet. for Cert. 3. But I am doubtful the statute requires a member of the public to invoke magic words like “native file format” in their request, when they've been explicit enough to request “digital copies.” A member of the public wouldn't be seeking records in a digital format that doesn't yet exist but will be created for purposes of production--i.e., the PDF copies produced by the Health Commissioner. Said another way, Mr. Brooke wasn't asking the State Health Department to create a new and different digital record in PDF that could then be produced to him. Rather, he was seeking the records as they already exist--i.e., the PST format or native file format. In my opinion, that should be rather intuitive. If I found myself in the district court's position on remand, I would probably deem Mr. Brooke's request for “digital copies” the functional equivalent of a request for digital records in their native file format.

2.   See ROA, Vol. 1, Doc. 5, Bench Trial Tr. 14:19-17:4, May 12, 2021. See generally Paul LeBlanc, Oklahoma Governor Who Faced Backlash over ‘Packed’ Restaurant Tweet Now Declares State of Emergency, CNN, Mar. 16, 2020, https://www.cnn.com/2020/03/15/politics/oklahoma-governor-deleted-tweet-coronavirus; George Lang, Out in a Crowd During a Pandemic, Gov Stitt Is a National Embarrassment, Oklahoma City Free Press, Mar. 18, 2020, https://freepressokc.com/out-in-a-crowd-during-a-pandemic-gov-stitt-is-a-national-embarrassment/ (showing Governor Stitt's now deleted tweet).

KANE, J.:

Concur: Kuehn, V.C.J., Edmondson, Gurich, Darby, and Kane, JJ. Concur in Result: Jett, J. (by separate writing) Dissent: Rowe, C.J., Winchester and Combs, JJ. (by separate writing)