Revising KORA: Correctly interpreting the “third business day” language of K.S.A. 45-218(d)

meeting room at capitolEvidence is accumulating that public agencies in Kansas are not responding to records requests within the time required by K.S.A. 45-218(d) of the Kansas Open Records Act (KROA). As a result, agencies often produce records only belatedly, if all. As a consequence, those requesting records are frustrated, and the agencies avoid being transparent in the way that KORA requires.

This problem may be addressed in different ways. First, public agencies need more training in how to comply with KORA. Second, the Attorney General’s office, which has responsibility for enforcing KORA that was even recently expanded, needs to strongly advise the agencies to give records requesters a timely and definite response as required by the law. The AG’s office should stand firm, as it did years ago, that the agencies must give requesters a definite response within three business days. Third, the Legislature may want to consider amending KORA to further emphasize agencies’ obligations to respond in a timely manner.

Currently, K.S.A. 45-218(d) requires that, within three business days after receiving a records request, a public agency must either: 1) grant access to the record; 2) if immediate access cannot be granted, explain the reason for the delay and set a date by which the record will be produced, or 3) deny the request. (The full text of K.S.A. 45-218(d) is here and at the end of this post.)

Instead of giving records requesters a definite response within three business days, however, public agencies not uncommonly respond by merely acknowledging receipt of a records request and then indefinitely delaying access to the record. Contrary to the KORA requirement, the agencies neither explain the delay nor set a deadline by which they will produce the record. As Sherry Chisenhall, editor and vice president at the Wichita Eagle puts it, “We commonly have agencies who interpret KORA as meaning they simply have to acknowledge that they received our request and they’re ‘working on it’….  They don’t generally cite a reason for a delay, or a timeline for delivering the information we’re asking for.’”

The AG’s office and organizations such as the Kansas Sunshine Coalition for Open Government offer training to public officials in how to comply with KORA. The training sessions should place great emphasis on K.S.A. 45-218(d) and its requirement for a timely and definite response to a records request.

Meanwhile, the AG’s office should revise its “Citizen’s Guide of KOMA/KORA” where it refers to K.S.A. 45-218(d). According to page 17 of the Guide, the AG’s office appears not to believe that a public agency must strictly comply with the requirement that it give a definite response to a records request within three business days after it receives the request. Rather, the AG’s office advises the reader of the Guide that the “agency may provide the records, or explain that they do not have the records you want, or may inform you that the search or review is underway and will be completed as soon as possible.” (Emphasis added.) However, K.S.A. 45-218 does not authorize an agency to respond to a requester by saying a “search or review is underway and will be completed as soon as possible.” In place of these words, the Guide needs to point out, in accordance with K.S.A. 45-218(d), that the agency “shall give a detailed explanation of the cause for further delay.”

The Guide also needs to point out, in accordance with K.S.A. 45-218(d), that, if a public agency decides it cannot produce a requested record within three business days, it not only must explain the delay in detail, but it must also state “the place and earliest time and date that the record will be available for inspection.” However, page 17 of the Guide does not specify that an agency is required to set a deadline for its production of a requested record. Instead, the Guide says that “[i]f there is a delay, the record custodian should provide a time estimate for you.” (Emphasis added.) The word “should” is merely suggestive of the agency’s duty. To be consistent with the letter and spirit of KORA, the Guide needs to say the agency “must” be specific about when the requester can have access to the record.

The AG needs to bring the wording of the Guide into line with Attorney General Opinion 87-86. There, with regard to K.S.A. 45-218(d), the AG’s office said that “[i]n our opinion, the phrase ‘shall be acted upon’ in the first sentence of this section indicates that some final agency action must occur within a three day time frame. When possible, access will be granted immediately. If immediate access is not possible, that agency action will take the form of either a grant or a denial of the request within a three-day period.”

In light of the Ag’s opinion regarding K.S.A. 45-218(d), the AG’s office should be telling public agencies and citizens alike that every agency has three business days to grant or deny a request or, if the record can’t be made immediately available, explain the delay in detail and specify when the agency will produce it.

Moreover, the Guide needs to be consistent with a Kansas Supreme Court decision, in which the Court awarded attorney fees to a newspaper when the agency subject to the newspaper’s KORA request violated K.S.A. 45-218(d). Fees were ordered in part because the agency failed to produce a “prompt response to records request.” Telegram Pub. Co., Inc. v. Kansas Dept. of Transp., 275 Kan. 779, 779 (2003).

In K.S.A. 45-218(d), KORA plainly requires that public agencies give a records requester a definite response within three business days after receiving the request. Failure to do so is a violation of the law. The requirement for a definite response is clear on its face. Training of public agencies in how to perform their duty under K.S.A. 45-218(d), along with enforcement of the law by the AG’s office, would produce compliance. Records requesters then would not be frustrated by indefinite and belated responses by agencies, and the agencies would not avoid transparency as required by KORA.

With a re-emphasis on enforcement, K.S.A. 45-218(d) is perfectly clear and does not need to be amended by the Legislature. However, if the Legislature were to consider strengthening K.S.A. 45-218(d), it might look to how other states such as Texas state the duty of agencies to respond to records requests. In Texas, if the records cannot be produced at the time requested, the custodian sends to the requester a letter stating why they cannot be produced, and sets forth “a date and hour within a reasonable time when the information will be available for inspection or duplication.” Texas Public Information Act, Sec. 552.221(c). The Texas law goes on to afford additional assurances for requesters, providing that if the information is not produced within 10 days, the custodian writes another letter again setting “a date and hour within a reasonable time when the information will be available for inspection or duplication.” Texas Public Information Act, Sec. 552.221(d).

Although an amendment to K.S.A. 45-218(d) could clarify when agencies must produce records in response to KORA requests, a welcome step would be for the Attorney General’s office to revise its “Citizen’s Guide of KOMA/KORA” so that agencies’ statutory obligations are faithfully represented. Then, records requesters would be served by public agencies in the way that the Legislature intended.

——————-

K.S.A. 45-218(d): “Each request for access to a public record shall be acted upon as soon as possible, but not later than the end of the third business day following the date that the request is received. If access to the public record is not granted immediately, the custodian 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. If the request for access is denied, the custodian shall provide, upon request, a written statement of the grounds for denial. Such statement shall cite the specific provision of law under which access is denied and shall be furnished to the requester not later than the end of the third business day following the date that the request for the statement is received.”