This is the first installment of what I plan to be the “Fresh Tips” series here at Fresh Takes. Today’s piece aims to review how members of the media and the public can most effectively use the Kansas Open Records Act (KORA) to have the best chance either to access desired records or, potentially, to litigate to reverse an unlawful denial of access.
KORA is the primary tool for journalists and the public to access government documents, as it establishes the procedure for requesting and obtaining documents kept by public agencies. According KORA, the public policy of the state of Kansas is that “public records shall be open for inspection by any person.” Although there are a few exceptions, a “public record” is “any recorded information, regardless of form or characteristics, which is made, maintained or kept by or is in the possession of any public agency.” Public agencies are defined as any government entity or instrumentality, as well as “any other entity receiving or expending and supported in whole or in part by the public funds appropriated by the state or by public funds of any political or taxing subdivision of the state.”
KORA requests should be directed to the custodian of public records at the agency in possession of the records. However, a nice feature of the statute is that if the person to whom the request is directed “is not the custodian of the public record requested, such person shall so notify the requester and shall furnish the name and location of the custodian of the public record, if known to or readily ascertainable by such person.” However, before sending the request, you will want to do your due diligence to learn the identity of the custodian of public records so you can avoid unnecessary delays, or having you request “lost in the shuffle.”
Although KORA requests may be made orally, KORA allows each public agency to determine whether requests must be in writing. However, it is fair to say that the vast majority of requests are likely to be in writing.
The trick is to frame the written request in the most effective and efficient manner. KORA allows agencies to “prescribe reasonable fees for providing access to or furnishing copies of public records,” and they can charge for “staff time” and copy expenses. Thus, you will want to do your best to avoid receiving a substantial bill from the agency before you can access the records. To do that, frame your request for the records as precisely as you can, so the agency does not have to spend any more time than necessary gathering and charging you for irrelevant documents. Experience has also shown that costs can sometimes be defrayed if you ask for the document in electronic form.
On the other hand, it is also a good idea not to make your request too narrow, because you could give the agency the opportunity to deny the request based on the fact that it does not have any documents that in its opinion is not responsive to the narrow request. Finally, if you know the “official” term for the document you are seeking, it doesn’t hurt to include that document title in a non-exhaustive list to give the agency some guidance about what you are after.
The content of the written request is extremely important because, despite the state’s policy of openness, some types of records need not be disclosed. In many instances, the disclosure of documents is adverse to an agency’s interests, so it may well employ all the tools available to deny the request. For an agency, the most useful of those tools is a plethora of exceptions to openness. The exceptions—55 of them—are listed in K.S.A. 45-221(a) and permit agencies to withhold records about certain personnel, security and other such matters. After the agency reviews a request for documents, it determines whether they fall into any of the 55 exceptions. If so, according to K.S.A. 45-221(a), the agency “shall not be required to disclose” such documents. Agencies often cite the exceptions to justify denying requests for public records.
No standard form is set forth in the KORA for requesting documents, so you must carefully plan your approach to have the best chance for success. When you begin to formulate a request, a good step is to find out how the agency labels and organizes the documents you want. For example, you might want the kind of police record that shows the names of persons arrested, the date and nature of the charges against them, and the amount of bond required and posted. If you were to ask a police department representative what such a record is called, you could learn that it is “police blotter.” Hill v. Day, 168 Kan. 604, 606 (1950). Then, you could prepare to request the record by its exact name and ease the task of police in locating and providing access to it.
When formulating a request for documents, another important step is to determine which of the 55 KORA exceptions might apply. Then, try to craft the request so that no exceptions, or at least very few, reasonably could be used by an agency to prevent you from gaining access to the documents. In determining which exceptions might apply, you could review them and try to imagine which ones an agency likely would invoke if it wanted to deny your request. In addition, you could review past correspondence, if any, that you’ve had with agency officials about records, especially if it is related to any previously denied requests. Then, look for a new way to ask for the documents you want—a way that will cause an agency to grant rather than deny your request.
In general, the easier the agency can identify the documents you want, the more likely it will be to grant your request for them. For example, limiting the request by date could be enough. Requesting “any and all records” related to a broad topic is likely to be denied out of hand. However, requesting “any and all” records related to a particular topic “from June 1 through June 5” requires a more measured review and response from an agency. Other good limiting language might be to request records “sufficient to disclose” or “sufficient to identify” the information you seek.
The manner in which a records request is phrased is of great importance, because the wording can go a long way toward determining whether the agency will respond positively. The phrasing of the request also is important, because any denial of it may become the basis for an enforcement action under KORA. Requesters who believe their requests have been unlawfully denied and subsequently file a civil action, to ask a judge to compel disclosure, must be prepared to have their case turn on whether the request was properly drafted.
KORA gives the media and members of the public alike the opportunity to hold government accountable. Precise, reasonable requests that take into account the exceptions to openness give such requests the best chance for success.