Clay Wirestone: Emporia State demands ransom for public records. You deserve to know what they’re hiding. (Column)

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We asked Emporia State University a simple question.

After breaking the law in responding to us, the school now wants a preposterous ransom to answer it.

You can complicate the matter one way or another, but that’s the situation we face here at Kansas Reflector, as our editors and reporters continually pursue stories that powerful people and institutions want to hide from you. We’ve written about the Kansas Legislature’s shameful practices — gutting bills and turning them into shells, bundling legislation, limiting or forbidding public comment — but ESU took matters to a new level this month.

When the university took the unprecedented step of suspending tenure and firing more than 30 professors and other staff members last year, officials explained the move as in the best interests of the institution. ESU was “creating the solutions to solve for the financial realities that have been discovered at ESU and are systemic throughout higher education,” in the words of president Ken Hush to students and faculty.

Our request and the motivation were simple. Given these stated financial challenges, was ESU paying performance bonuses to members of the remaining faculty this academic year? And if it was, who was receiving payments, and for how much?

We know now that they were indeed paying such bonuses. How? Because the university has demanded Kansas Reflector pay $700 before handing over that information.

Before they told us that, however, they broke the law. Kansas statute states plainly that public agencies must provide requested records — or an estimate of how long it will take to prepare them — by the end of the third business day. Reflector editor in chief Sherman Smith asked for the records March 1. The university did not even respond until March 8, two days after the deadline, and did not offer a cost estimate until March 10, four days after the legal deadline.

University attorney Kevin Johnson told us, via email, that fulfilling the request would cost $700, for 20 hours of staff time at $35 an hour. This seems ridiculous on its face. First, and most obviously, administration at ESU would know which faculty members they chose to receive such bonuses.

That’s the whole point of a performance bonus.

Secondly, even if retrieving such information took extra time and care, the idea that someone on staff would need half a work week to do so (at $35 an hour besides) strains credulity.

Nonetheless, ESU spokeswoman Gwen Larsen wrote us that: “The information you have requested on behalf of the Kansas Reflector requires more than a computer query. It is a manual process that will require ESU professionals to review hundreds of documents to determine which pay changes are performance bonuses instead of increases from things like course overload, additional duties, special projects or grants.”

Ken Hush, president at Emporia State University since November, said financial realities compel ESU to consider realigning the budget through process that could include employee layoffs and changes in of academic programs. (Margaret Mellott/Kansas Reflector)
August Rudisell / Lawrence Times  Ken Hush, president at Emporia State University, said last year that financial realities compelled ESU to realign its budget through employee layoffs and changes in academic programs. (Margaret Mellott/Kansas Reflector)

This information is yours to know. You, the person reading this column right now, has the right to know the salaries of public employees. You pay their wages. You pay their bonuses. You should know how much the university that has executed precedent-shattering layoffs decided to pay remaining staff.

Emporia demands that we pay $700 for that privilege — for your right to know.

First Amendment attorney Max Kautsch serves as president of the Kansas Coalition for Open Government. He has written for Kansas Reflector about transparency issues and told me that our state is one of few that allows public agencies to charge for staff time in fulfilling public records request.

“Many states, such as Oklahoma and Kentucky, limit an agency’s ability to charge for staff time in some manner, such as by reducing fees for journalists and members of the public seeking records related to matters of public concern,” he told me via email. ” Other states, such as Nevada and California, prohibit agencies from charging staff time at all.

“The law’s inability to regulate staff time gives agencies an avenue to effectively deny requests by charging an exorbitant fee. The city of Frontenac employed this tactic in 2019, when it responded to an open records request by seeking to charge the media requesters over $3,000 for requested records.  Then-Attorney General Derek Schmidt’s office found the charges in that case were ‘per se unreasonable.’ But the city’s response still allowed it to stonewall for months, depriving Kansans access to information about matters of public concern in real time.”

In this case, he said, it was likely ESU’s charges also were “per se unreasonable” given how payroll software has been designed.

In other words, if a public agency decides it doesn’t want to fulfill a request for public records, it has ways of making that happen. They can simply drag their feet in responding. They can charge ridiculous fees for supposedly complying with the law. Unless those requesting records pay up — or take legal action — the records stay hidden.

I’m proud to be part of Kansas Reflector. I’m proud of the work Smith and reporters do every day. Our in-depth coverage of Emporia State’s turmoil might have ruffled feathers, but it also told you about important changes at a state university. You deserved to know.

I’m also proud to watch the work we do at the Legislature. There, too, those holding power repeatedly stymie coverage through convoluted procedural games. Tracking a simple piece of legislation can become all but impossible in the waning days of a session.

You deserve to know what our legislators do. You deserve to know what public employees are paid. You deserve to know what goes on behind closed doors and in the corridors of power. Especially now, as news organizations across the nation celebrate Sunshine Week and the freedom of information. This matters at ever level of society, from the federal government down to city hall.

Unfortunately, efforts to improve open records laws in Kansas have been stymied throughout the last decade.

“Even the most recent bill’s modest attempt to limit costs for staff time, which would have merely required staff time to be charged at a rate equal to ‘the lowest-cost category of staff reasonably necessary to provide access to or furnish copies of public records,’ failed to make it out of committee,” Kautsch said.

We can cover $700 if we have to. But ESU shouldn’t hold public information ransom.

Clay Wirestone is Kansas Reflector opinion editor.

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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