United States District Court, D. Kansas
D.M., a minor, by and through his next friend and natural guardian, KELLI MORGAN, Plaintiff,
WESLEY MEDICAL CENTER LLC, et al., Defendants.
MEMORANDUM & ORDER ON MOTION FOR PROTECTIVE
KENNETH G. GALE UNITED STATES MAGISTRATE JUDGE
the Court is the "Motion for Protective Order to Close
Public Records Obtained Under KORA" filed by Defendant
Via Christi. (Doc. 96.) After review of the relevant filings,
the Court DENIES Defendant's motion.
factual background of this medical malpractice case was
summarized in this Court's Order (Doc. 116) granting in
part and denying in part the Motions to Strike (Doc. 41 and
60) filed by Defendant Chambers-Daney and Defendant Bridget
Grover. That factual summary is incorporated herein by
present motion relates to a Kansas Open Records Act
("KORA") request from Plaintiff to the Kansas
Health Care Stabilization Fund ("the Fund").
Defendant contends that "[t]he records the Fund may
produce that are responsive to the KORA Request will likely
reveal certain confidential information relating to Defendant
Via Christi's finances and claims history...." (Doc.
96, at 2.) More specifically, Defendant contends
[t]hrough a series of twelve different categories of
requests, Plaintiff's KORA Request demands that the Fund
provide Plaintiff with copies of all of those annual renewal
documents and any other documents pertaining to Via Christi
in the Fund's possession. Those documents include
financial statements, balance sheets, and other assorted
business, financial, proprietary, and confidential
information, the public disclosure of which could cause undue
hardship to Via Christi.
(Id., citing Doc. 96-2.) Defendant argues that the
documents "should be treated as confidential and
protected from disclosure outside this litigation, and used
only for the purpose of prosecuting or defending this action
and any appeals." (Id.) Defendant relies on
Fed.R.Civ.P. 26(c), which allows a court to enter a
protective order forbidding a requested disclosure to protect
a party from annoyance, embarrassment or oppression.
argues that documents that are available to the public
pursuant to a KORA request should not be subject to a
confidentiality designation under a protective order. (Doc.
100, at 1.) KORA states that the "public policy of the
state [is] that public records shall be open for inspection
by any person unless otherwise provided by this act."
K.S.A. § 45-216. Under KORA, a public record is
"any recorded information, regardless of form,
characteristics or location, which is made, maintained or
kept by or is in the possession of any public agency."
are directed to liberally construe KORA to promote a policy
of openness. Cypress Media, Inc. v. Overland Park,
268 Kan. 407, 417, 997 P.2d 681, 689 (2000). Although KORA
provides specific exceptions to disclosure, "exceptions
are to be narrowly interpreted, and the burden is on the
public agency opposing disclosure." Data Tree, LLC
v. Meek, 279 Kan. 445, 454-55, 109 P.3d 1226, 1234
argues that Rule 26(c) protective orders "are available
only for documents requested from a party under the Federal
Rules of Civil Procedure," not information sought or
received from a freedom of information request such as KORA.
(Doc. 100, at 5.) Defendant replies that courts have inherent
authority to regulate conduct of lawyers appear before them.
(Doc. 119, at 2-3.) As such, Defendant argues that
application of Rule 26(c) in this instance is an appropriate
exercise of this authority. (Id.) Defendant also
argues that the KORA request at issue was made by the
attorney representing Plaintiff in this action, not "a
stranger to this litigation." (Id., at 4.)
Defendant further contends that Rule 26(c) is applicable
because Defendant is a party to this litigation "from
whom discovery is sought," thus implicating the rule.
Court finds Defendant's arguments to be misplaced. The
information is not sought from Defendant Via Christi or any
other party to this case. The KORA request was made to, and
is to be answered by, the Fund. (Doc. 96-1.) By definition,
records obtained through the Kansas Open Records Act are
"open" or public. The agency must determine whether
the records are producible under KORA and disagreements about
the conclusion are resolved by the state courts. K.S.A.
§ 45-222. Any remedy available to Defendant to prevent
disclosure under KORA would be through the state court.
Defendant's creative argument notwithstanding, Rule 26(c)
is not available to limit the use of public document obtained
outside the discovery process. Defendant's motion is
THEREFORE ORDERED that Defendant Via Christi's Motion for
Protective Order (Doc. 96) is DENIED.