Opinion

Kansas AG’s office enforces open records law while overlooking key piece

September 15, 2022 3:33 am

Derek Schmidt looks out at the debate crowd at the Kansas State Fair on Sept. 10, 2022, in Hutchinson. (Sherman Smith/Kansas Reflector)

The Kansas Reflector welcomes opinion pieces from writers who share our goal of widening the conversation about how public policies affect the day-to-day lives of people throughout our state. Max Kautsch is an attorney whose practice focuses on First Amendment rights and open government law.

This is the second of a two-part series.

On Wednesday, I reviewed the unwillingness of the Attorney General’s Office to provide the date and time a record will be available in response to open records requests it receives, even though the Kansas Open Records Act expressly says that the agency must tell the requester the “earliest time and date that the record will be available for inspection.”

Today, I will review the AGO’s mixed enforcement record on the issue. Kansas deserves better.

 

In the dark

Failing to provide the “earliest date and time” doesn’t just violate the plain language of the law. It also leaves the member of the public who made the effort to exercise their rights wondering whether the government respects those rights, and whether the laws establishing those rights have meaning.

In many instances, open records requests are made by journalists or others seeking information to shed light on an issue of public interest. Significant benefit may be realized from “receiving the information quickly, such as its contribution to a current public debate or any harm to the public that could result from delayed release,” according to the Reporters Committee for Freedom of the Press.

Perhaps most importantly, putting a date in writing gives the agency an internal deadline to respond to the request, prompting compliance. Without a deadline, there may be a lack of urgency to respond to the request.

The AGO’s staunch refusal to provide the date and time is particularly puzzling because of how easy it would be to comply with the law. It costs nothing to include a date the requester can expect to receive correspondence. Moreover, even if an agency were to discover in good faith that it cannot meet its own deadline, it could simply alert the requester of a new date the agency anticipates records will be available.

The AGO did not respond to an email seeking comment.

 

Inconsistent enforcement

It is difficult if not impossible to quantify the extent to which the AGO’s refusal to impose on itself the requirement to provide the requester with the date and time affects its KORA enforcement.

But in four instances documented by the AGO’s open government enforcement report for fiscal year 2018, the office found that state agencies, including the governor’s office and the secretary of state, had not violated KORA even though those agencies failed to provide the date the requested record would be available. In those instances, the AGO gave the agencies a pass as long as the agency otherwise communicated with the requester, even if the agency didn’t provide the date the record would be available.

In other words, the agencies did not violate the law if the agencies did what the AGO does when it gets requests: tell the requester the request is being handled, but without giving a date the records would be available.

– Max Kautsch

In other words, the agencies did not violate the law if the agencies did what the AGO does when it gets requests: tell the requester the request is being handled, but without giving a date the records would be available.

That the text of the law says otherwise did not inspire the AGO to find violations in those cases.

But its most recent enforcement report reveals that the agency found a county clerk’s office in violation for failing to provide the availability date of requested records.

During fiscal year 2021, a member of the public made a KORA request for a county clerk’s text messages and recordings on her cell phone. Although the agency responded within three days, it did not provide the requested records at that time and did not communicate with the requester for 42 more days. The AGO found that the agency’s “failure to explain the reason for the delay and provide the earliest date and time the records would be available violated the KORA.”

In that case, there is no indication the agency stayed in communication with the requester during the 42 days, while the agencies accused of the same violation in 2018 at least communicated with the requester during that time.

But the law requires more than staying in touch. It requires providing a date so the requester knows when to expect to hear from the agency. Ruling in ways that enforce that law against some agencies and not others, particularly when the agency charged with enforcing the law refuses to apply it internally, shakes public confidence in government.

With Attorney General Derek Schmidt’s departure, Kansas will elect his successor in November.  Whoever leads it, the office must prioritize following KORA as written, now and in the years to come.

Through its opinion section, the Kansas Reflector works to amplify the voices of people who are affected by public policies or excluded from public debate. Find information, including how to submit your own commentary, here.

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Max Kautsch
Max Kautsch

Max Kautsch, licensed to practice law in both Kansas and Nebraska, focuses his practice on First Amendment rights and open government law. He helps news media and members of the public assert rights of access to court proceedings, court records, and government agency documents. He serves as the legal hotline attorney for the Kansas Press Association and the Kansas Association of Broadcasters, is president of the Kansas Coalition for Open Government, and is an adjunct professor at the University Kansas School of Law. Kautsch is also hotline counsel to both the Nebraska Press Association and the Nebraska Broadcasters Association.

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