Resolving Open Records Disputes: New Statutory Sections Proposed in SB 206

statute booksIt is well-established that district courts in Kansas have jurisdiction to rule on controversies involving the Kansas Open Records Act (KORA) and the Kansas Open Meetings Act (KOMA). K.S.A. 45-222; K.S.A. 75-4320a. However, Kansas law has long lacked a specific enforcement mechanism to better ensure compliance with open records laws. In an attempt to remedy this deficiency, the Attorney General’s office recently introduced SB 206, which in part proposes new statutory sections that would be added to those acts and would grant that office authority to investigate and make findings regarding government agencies’ failure to comply with applicable open records provisions. See New Section 1; New Section 4. It would also allow county and district attorneys to resolve public records disputes in an expedited fashion rather than that parties resorting to civil litigation under K.S.A. 45-222 or K.S.A. 75-4320a. See New Section 2; New Section 5. This blog post will outline each of the new sections, focusing on those that establish new procedures for resolving open records disputes.

New Sections 1(a) and 4(a) provide that the office “may determine by a preponderance of the evidence after investigation that a public agency has violated” either the KORA or the KOMA. Subsections (a)(1) of both New Sections set forth the contents of such a consent order, which include requirements that the agency engage in training approved by the Attorney General’s office; the imposition of civil fines of up to $250.00 per violation; an agreement to follow applicable open records laws; and that the consent order shall “bear the signature of the head of the public agency…or any other person required by the attorney general.” Sections 1(a)(1)(B) and 4 (a)(1)(B).

The Attorney General’s office also has the option to issue a “finding of violation to the public agency,” which contains “findings of fact and conclusions of law and require the public agency” to do all the things that would otherwise be required under a consent order, except that the civil fine is “not to exceed $500 for each violation.” Sections 1(a)(2)(D) and 4(a)(2)(D). The Attorney General’s office may require submission of proof from the agency that the agency in in compliance with either the consent order or the finding of violation. Sections 1(b) and 4(b).

Next, SB 206 contains provisions for courts to enforce the consent orders and findings of violations, but prior to making any rulings on any litigation under K.S.A. 45-222 or K.S.A. 75-4320a. Prior to filing any action in district court, the Attorney General’s office would be required to write a demand letter to the public agency requesting compliance, and give the agency a “reasonable opportunity” to “cure the violation.” Sections 1(c)(1) and 4(c)(1). If the violation is not cured, the Attorney General’s office may file an “enforcement action…in the district court of the county where the consent order or finding of violation is issued or is effective.” Sections 1(c)(2) and 4(c)(2). The judge then has the opportunity to “view the records in controversy in camera before reaching a decision.” Sections 1(c)(3) and 4(c)(3). If the judge then finds that the “attorney general did not abuse the attorney general’s discretion in entering into the consent order or issuing the finding of violation, the district shall enter an order.” Sections 1(c)(4) and 4(c)(4). The order enjoins the public agency to comply; imposes a civil penalty of no more than $500.00 for each violation; requires the agency to pay the attorney general’s “reasonable costs in investigating and bringing an action to enforce the order, including reasonable attorney fees;” and authorizes any other remedy the court deems fit under the applicable open records act. See Sections 1(c)(4)(A)-(D) and 4(c)(1)(A)-(D).

New Sections 2 and 5 appear to be something on the order of catch-all provisions allowing either the Attorney General or the local district or county attorney to resolve an open records issue prior to litigation under K.S.A. 45-222 or K.S.A. 75-4320a. They provide that in lieu of proceeding under either of those statutes, the “attorney general or a county or district attorney may resolve the matter by accepting a consent judgment with respect to any act or practice declared to be in violation of this act.” Section 2(a); Section 5(a). Those proposed new sections further provide that the court must approve the consent judgment before making an entry of judgment, that it may contain any remedy except an award of “reasonable expenses, investigation costs or attorney fees,” and in the instance of a request under KORA, that it may include a stipulation regarding the production of requested documents. Section 2(b).

New Sections 3 and 6 are parallel provisions requiring that any person complaining that an agency has violated KORA or KOMA to notify the Attorney General’s office “on a form proscribed by the attorney general.”

Lastly, New Sections 7, 8 and 9 of SB 206 would create an attorney general open government fund that would be used to “carry out the provisions and purposes” of open records laws. Section 7(a). The fund would receive the civil penalties assessed as a result of violations of open records laws, resulting in funds specifically earmarked for enforcing open records laws, training government agencies to comply with open records laws, and otherwise implementing open records laws throughout the state. See Sections 8 and 9.

The remaining new provisions establish procedures for resolving open records disputes prior to litigation under K.S.A. 45-222 or K.S.A. 75-4320a. Application of these procedures would seem likely to result in resolution of such disputes in a manner akin to alternative dispute resolution, even though the judiciary could be involved either to enforce a consent agreement or finding of violation, or order a consent judgment under Sections 2 and 5. These procedural safeguards are also not unlike an administrative proceeding, the goal of which is also to resolve the issue prior to a great expenditure of resources. Moreover, these specific statutory provisions highlight the important of compliance with open records laws.

In sum, the procedures set forth in SB 206 would create additional statutory protection for citizens embroiled in open records disputes. Further, they protect the government agency responding to any open records request, as those agencies would have the opportunity to comply with the law without having to incur the expense of defending as action brought under K.S.A. 45-222 or K.S.A. 75-4320a. Finally, although the Attorney General’s office would have additional investigatory powers, New Sections 2 and 5 also allow for disputes to be resolved locally.

This new statutory sections set forth in this bill should be met with a broad base of support. I will plan to examine the statutory amendments SB 206 contemplates in this space on Monday, February 16.