Max Kautsch: Attorney General’s Office ignores plain text of Kansas open records law, sets poor example (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.

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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.

One of the framers of the U.S. Constitution, John Adams, once said that a democracy is a “government of laws, and not of men.” For such a government to exist with the ongoing consent of the governed, it must interpret its laws fairly and consistently.

This column is the first of a two-part series.

Read Part 2 at this link.

That consent wavers if public agencies responsible for enforcing laws do not see fit to follow them or enforce them consistently.

The top law enforcement agency in the state, the Attorney General’s Office, wears many hats, but the office is of particular importance to the Kansas Coalition for Open Government because it has long been the only statewide agency responsible for enforcing the Kansas Open Records Act and the Kansas Open Meetings Act.

It is reasonable for the public to expect not only that the office fairly enforces those laws, but also that it follows them. But a report posted on the AGO’s website last month shows that during fiscal year 2021 it found a county clerk violated the same provision of KORA with which the office has refused to comply.

Alphabet soup: AGO, KORA, and KOMA

The AGO’s law enforcement responsibilities include handling complaints from the public alleging that public agencies have violated either KORA or KOMA. By law, it has produced reports each of the last five years documenting how it enforces those laws, with the report covering fiscal year 2021 going live Aug. 22.

A member of the public could file a KORA or KOMA complaint for various reasons, such as if they believe an agency has failed to respond properly to a KORA request. The agency’s obligations include acting on such requests within three business days. If an agency is unable to produce the record by then, the law says that it “shall give a detailed explanation of the cause for further delay and the place and earliest time and date that the record will be available for inspection.”

But do those words have meaning when the agency responsible for enforcing them does not apply them uniformly?

Inconsistent policies

The AGO is itself a public agency and, as such, is responsible for responding to KORA requests. Despite KORA’s plain language, indications are that the office under Attorney General Derek Schmidt has refused, since at least 2017, to provide KORA requesters seeking records from his office with the earliest date and time a record will be available if it is not disclosed in three days.

That year, the Topeka Capital-Journal reported that the office delayed providing records in response to a KORA request the newspaper had made and never communicated a date the records would be available. The AGO disclosed the requested records only after the Capital-Journal retained counsel and never acknowledged it was responsible for providing the “earliest date and time.”

That approach does not seem to have changed in the succeeding years. The office’s current policy for responding to KORA effectively admits as much. It provides that in the event a requested record is not produced within three days, the requester can expect that a “written response will be provided as soon as the records have been located and reviewed.”

The policy is silent as to whether that written response includes the “earliest date and time” a record will be available.

Further, an AGO publication intended to inform the public about open government laws also fails to include the requirement. In “A Citizen’s Guide to KORA and KOMA,” the AGO tells the public only that “agencies are only required to inform you that the search or review is underway and will be completed as soon as possible.”

Moreover, a KORA training video the office was involved in producing in the last few years says nothing about agencies’ responsibility to provide a date on which the requester can expect the records. It merely advises that agencies can comply with the law simply by telling requesters the agency simply “need(s) additional time” to provide the record.

The AGO did not respond to an email seeking comment.

Policy applied

I’ve seen firsthand the AGO’s refusal to provide the date a record will be available.

For years, the office published outlines interpreting KORA and its counterpart, KOMA. Those documents, which the AGO routinely updated through 2017 or so, were a great public resource because they noted relevant attorney general opinions and case law interpreting open government laws.

For reasons unknown, the office removed those items from its website several years ago, even though AGs in other states make such information readily accessible. Because I had found the AGO’s outlines useful in the past and wanted to learn that office’s interpretation of open government laws in recent years, I made a KORA request on June 8, 2021, for all the KORA and KOMA outlines the AGO had produced since the items were removed from the website.

The response I received initially was timely. But it did not include the records I asked for. Instead, I was told that because the records “may require a file-by-file review … we are unable to provide an exact date when the requested records, if any, will be available.”

I heard nothing for the rest of June, July, and August. On September 1, I sent an email asking about my request.

The very next day, I received an email indicating that the office had exercised its discretion to deny my request because it claimed that the 12 outlines it had that were responsive were “notes or drafts made by attorneys in this office.”

Given that the 12 documents are not on the AGO’s website and apparently have not been published otherwise, they are arguably drafts, and I didn’t challenge the denial. But why did I have to wait almost three months when the response appeared to have been created in less than a day? How much longer would I have had to wait for that response if I hadn’t sent the email?

And why is the AGO, the enforcer of open government laws, now withholding outlines interpreting KORA and KOMA from the public?

(On Thursday, I’ll delve into the AGO’s mixed record of handling complaints alleging that public agencies have failed to provide the date records will be available.)

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. Find how to submit your own commentary to The Lawrence Times here.

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: Follow Kansas Reflector on Facebook and Twitter.

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