Max Kautsch: Kansas AG Derek Schmidt falls short on enforcing open records law (Column)

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Note: The Lawrence Times runs opinion columns written by community members with varying perspectives on local issues. Occasionally, we’ll also pick up columns from other nearby news outlets. These pieces do not necessarily reflect the opinions of the Times staff.

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 a Lawrence attorney whose practice focuses on First Amendment rights and open government law.

Originally published by Kansas Reflector on March 16, 2021:

Every March, Sunshine Week reminds us to consider whether Kansans are adequately informed about what the government is up to. One of the most important mechanisms for shedding light on official activities in this state is the Kansas Open Records Act.

This week is also a good time to realize that the public’s right to access government records is not absolute. No freedom of information law in the country grants unfettered access, and KORA contains many exceptions that allow public agencies to choose not to disclose requested records under certain circumstances.

Still, KORA’s guiding precept is that it “shall be liberally construed to promote” the state’s policy that government records be reasonably available to the public. Unfortunately, in recently ruling on a KORA complaint filed by Kansas Reflector, Attorney General Derek Schmidt’s office did the opposite.

Schmidt’s relationship with KORA deserves to be scrutinized given the key role his office plays in enforcing that law. If someone believes a public agency has unjustifiably refused to turn over a record in response to a KORA request, the most readily available and cost-effective remedy is often to file a complaint with Schmidt’s office.

There have certainly been occasions where Schmidt’s office has caught public agencies playing fast and loose with KORA. His office also was on the side of sunshine when its arguments led to a 2018 Kansas Supreme Court ruling that a private corporation operating a county hospital must respond to KORA requests. But the Attorney General’s handling of the Reflector’s complaint adds to a body of precedent suggesting that his office does not exercise its enforcement authority in a manner that puts a priority on the public’s right to know.

The Reflector’s complaint raised the issue of whether the Kansas Department of Health and Environment could rely on KORA’s privacy exception as the sole reason to deny the Reflector’s request to obtain records indicating COVID-19 “clusters” of “any size” at private businesses. That request was made in September of last year, shortly after KDHE announced a since-amended policy that it would disclose virtually every location open to the public where a “cluster” of five or more people were infected with the virus but would only identify private businesses where more than 20 were infected.

Under KORA, a public agency may deny access to a record if it constitutes a “clearly unwarranted invasion of personal privacy,” which is defined “as information that would be highly offensive to a reasonable person, including information that may pose a risk to a person or property and is not of legitimate concern to the public.”

In other words, privacy is a valid reason to withhold a record in response to a KORA request only if the agency can show essentially two things: that the information is highly offensive, and that disclosure of the information is not legitimately of public concern. These requirements also appear in both Kansas Supreme Court and Kansas Federal District Court rulings related to privacy law.

Therefore, if the records requested by the Reflector contained information that is of legitimate public concern, they must be disclosed under KORA, even if such information may be considered highly offensive. Simply interpreting the words as they appear on the page would seem to be enough to reach such a conclusion, regardless of the obligation to interpret the law to promote transparency.

But Schmidt’s office did not plainly apply the law to resolve the issue. In ruling that KDHE had not violated KORA, it failed to address whether or how disclosure of the requested records would be “highly offensive to a reasonable person.” It also did not explain why disclosure of the records would not be “of legitimate concern to the public,” even though such disclosure would contribute to public safety by enabling people to avoid COVID-19 “clusters.”

Instead, Schmidt’s office interpreted KORA’s privacy exception to require records custodians to “weigh and balance competing interests of privacy against public disclosure of private information held by the government.”

This interpretation is problematic because it focuses on privacy interests and omits any reference whatsoever to KORA’s requirement that disclosure depends on whether the public has a legitimate interest in the information sought. Moreover, KORA does not require public agencies to “weigh and balance competing interests” in applying the privacy exception.

Rather, if a public agency intends to deny a KORA request to protect privacy, the agency must show the information sought “would be highly offensive to a reasonable person, including information that may pose a risk to a person or property and is not of legitimate concern to the public.”

The words in our laws have meaning, and the attorney general, as the top law enforcement officer in the state, is bound by them. The ruling in this instance is particularly questionable given KORA’s clear directive that the law be interpreted to promote transparency.

Schmidt’s office should re-open the Reflector’s complaint, apply KORA’s privacy exemption as written, and find that KDHE violated KORA when it refused to disclose records responsive to the Reflector’s request.

About the writer

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.

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, or how to submit commentary to The Lawrence Times, here.

Kansas Reflector is part of States Newsroom, a network of news outlets supported by grants and a coalition of donors as a 501c(3) public charity. Kansas Reflector maintains editorial independence. Contact Editor Sherman Smith for questions: Follow Kansas Reflector on Facebook and Twitter.

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