Kansas panel balances transparency, costs in open records act update

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TOPEKA — A Kansas Senate panel considered Monday how best to proceed with amending the state’s open records act to increase transparency without triggering unintended consequences and placing an undue burden on municipalities.

Senate Bill 386 would limit fees for copying and providing records, including the cost of staff time, under the Kansas Open Records Act to the lowest hourly rate of the person qualified to provide the records. The bill would also ensure no fee is charged if a search determines the record does not exist.

It would also give the record custodian the discretion to waive any fee should it be in the public interest to do so.

Emily Bradbury, executive director of the Kansas Press Association, pointed to a 2020 incident following a series of personnel firings in Frontenac where the city attorney wanted to charge $3,500 for records without explanation of how he arrived at that figure.

“While a majority of KORA requests from journalists are handled well, with efficiency and grace from government entities, there are many instances where this is not the case,” Bradbury said. “Because there are no real statutory guidelines for what can be charged, newspaper reporters and private citizens have had to deal with exorbitant costs for gaining access to public records.”

A 2020 Northwestern University Law review labeled Kansas as a “transparency desert.” In 2015, the Center for Public Integrity gave Kansas an F grade for transparency, placing the state 43rd overall.

An investigation conducted by the Kansas Attorney General’s Office found the city government of Frontenac to have violated its own policies by charging unreasonable rates. Caleb Smith, campaign director for Kansas Appleseed Center for Law and Justice, pointed to additional instances, such KAKE receiving a bill totaling more than $40,000 when pursuing records about fraudulent unemployment claims.

“This bill puts in place best practices for limiting the fee barrier to transparency,” Smith said. “It limits the charging of staff time to the lowest rate of a person qualified to fulfill the request, prevents fees from being charged just to determine if a record exists and provides for the discretionary waiver of fees if requested records are in the public interest.”

However, opponents of the bill say existing law already addresses rare cases, such as Frontenac.

Michael Koss, an attorney for the City of Overland Park, said most concerning was that by changing wording regarding furnishing copies, the bill could require local taxpayers to subsidize the costs of redacting public records. He used a recent request of more than 15,000 emails related to multiple lawsuits to illustrate the potential issue.

“Many of those emails contained information about juvenile victims and were subject to attorney-client privilege, so staff had to review and redact such information from the emails,” Koss said. “That change arguably removes the basis for local governments to recoup the cost of staff time to redact records, thus creating an expensive unfunded mandate on local taxpayers who have to assume that cost.”

If passed, the law would go into effect July 1.

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Sen. Kellie Warren, a Leawood Republican, also noted the laborious nature of the redaction process, from her firsthand experience as an attorney participating in significant litigation.

“Is there a balance we can bring to the need to keep private information private, to allow our responding agencies and departments to do the research and to the need for being transparent to the public?” Warren said.

Erik Sartorius, executive director for the Kansas League of Municipalities, said his organization had already been engaging in dialogue with the Kansas Press Association to close these gaps. One area he said could easily be bridged was the provision requiring the lowest hourly rate of the person qualified to provide the records.

While he accepted the concept, he pushed for a better definition to be applied.

“The person who works the check-in desk at the rec center may have the capacity to get a record, but if the record is housed at City Hall” it could cause a problem, he said. “If it’s not a workable situation, just because that is the lowest possible wage that could conceivably do the work, then that’s an area where it seems a little murky.”

Kansas Reflector is part of States Newsroom, a network of news bureaus 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: info@kansasreflector.com. Follow Kansas Reflector on Facebook and Twitter.

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