The Kansas Reflector welcomes input from writers who share our goal of broadening the conversation about how public policy impacts the daily lives of people across the state.. Max Kautsch is an attorney focused on First Amendment rights and open government law.
John Adams, one of the authors of the US Constitution, once said that democracy is “the rule of law, not the rule of men.” For such a government to exist with the continued consent of its subjects, it must interpret its laws fairly and consistently.
That consent is undermined when the public agency responsible for enforcing the law determines that it is not appropriate to follow the law or consistently enforce the law.
The state’s supreme law enforcement agency, the Office of the Attorney General, serves many roles, but the office is the only statewide agency responsible for enforcing the Kansas Public Records Act, the Kansas Public Government. Of particular importance to the Kansas Union for Kansas Open Conference Act.
It is natural to expect the authorities to not only enforce these laws fairly, but also to comply with them. However, a report posted on the AGO’s website last month found that a county clerk violated the same KORA provision during the 2021 fiscal year and the office refused to comply.
Alphabet Soup: AGO, KORA, KOMA
AGO’s law enforcement responsibilities include handling complaints from the public alleging that public authorities have violated KORA or KOMA. By law, we are producing reports for the past five years documenting how we are enforcing these laws, and the report covering fiscal year 2021 will be published on August 22nd.
Members of the public may file a KORA or KOMA complaint for a variety of reasons, including if they believe the agency has failed to adequately respond to a KORA request. Agent’s obligations include responding to such requests within three (3) business days. If the agency is unable to produce the records by then, the law states, “a detailed explanation shall be given as to the cause of any further delay and the location and earliest date at which the records will be made available.”
But do those words have meaning if the agency responsible for enforcing them does not apply them uniformly?
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As the AGO itself is a public body, it is responsible for responding to KORA’s requests. Despite KORA’s plain language, the office under Attorney General Derek Schmidt has, since at least 2017, given KORA requesters seeking records from his office the earliest date and time the records will be available. indicates a refusal to provide day to day.
That year, the Topeka Capital-Journal reported that, in response to KORA’s request made by the paper, the Secretariat delayed providing the records and did not give a date when the records would be available. AGO disclosed the requested records only after Capital-Journal never acknowledged its responsibility to engage attorneys and provide the “earliest date and time.”
That approach doesn’t seem to have changed in the years since. The Office’s current policy for dealing with KORA effectively allows a lot. It stipulates that if the requested record is not produced within three days, the requester can expect “a written response to be provided as soon as the record is found and verified.”
The policy does not say whether the written response includes the “earliest date and time” that records will be available.
Furthermore, AGO publications intended to inform the public about open government laws do not include this requirement. In its “Citizen’s Guide to KORA and KOMA,” the AGO only informs the public that it is “only obliged to notify the agency that an investigation or review is ongoing and will be completed as soon as possible.” .
Additionally, the KORA training videos that the firm has been involved in producing over the last few years say nothing about the agency’s responsibility to provide a date on which clients can expect records. It simply advises the agency to comply with the law simply by telling the requester that it needs “additional time” to provide the records.
AGO did not respond to an email requesting comment.
The KORA training video, which the office has been involved in producing over the last few years, says nothing about the agency’s responsibility to provide dates on which requesters can expect records.
I have seen firsthand that AGO refused to provide a date when the records would be available.
Over the years, the Secretariat has published outlines that interpret KORA and its counterpart KOMA. These documents, which the AGO had updated regularly until his circa 2017, were an excellent public resource as they referred to the relevant Attorney General’s opinion and case law interpreting the Open Government Act.
For unknown reasons, the office removed those items from their websites years ago, even though other state AGs make such information easily accessible. I found the AGO overview useful and wanted to know the agency’s interpretation of recent Open Government Acts, so on June 8, 2021, I decided to submit an overview of all KORAs and KOMAs prepared by the AGO to KORA. made a request. The item has been removed from the website.
The initial response received was timely. However, the record I asked for was not included. Instead, I was told that the record “cannot provide an exact date when the requested record will be available, as it may require a file-by-file review.”
We heard nothing for the rest of June, July and August. I sent an email on September 1st asking about my request.
I received an email the next day indicating that the Secretariat has exercised its discretion to deny my request. This is because it claimed that the 12 outlines it responded to were “memos or drafts made by attorneys in this office.”
Given that the 12 documents were not posted on the AGO website or otherwise apparently made public, they were almost certainly drafts and I did not dispute that denial. did. But why did he have to wait three months when the response appeared to have taken him less than a day? How long did we have to wait?
And why isn’t the AGO, the enforcer of the Open Government Act, currently publishing a summary of its interpretation of KORA and KOMA?
(On Thursday, we’ll dig into the AGO’s various complaint records, which it claims the public agency failed to provide a date when the records would be available.)
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