Revising KORA: Containing costs of “staff time” under K.S.A. 45-219(c)

costs risingWhen a citizen asks a government agency in Kansas for a public record, the agency may charge a high fee for finding and producing it. In fact, the fee can be so high that the citizen can’t afford to pay it. As a practical matter, then, the citizen cannot exercise his or her right of access to public records, and the agency can avoid being transparent the way it should be under the Kansas Open Records Act (KORA).

KORA should be amended to solve this problem so that agencies generally cannot charge for “staff time” spent finding and producing records for requesters who serve the public interest, including journalists. However, agencies should still be free to charge staff time at reasonable rates rate when requesters seek records to serve private interests. This basically is the approach taken in a neighboring state, Oklahoma, and it is an effective way to strike a balance between agencies’ need to cover their costs and the public’s need for information about what public officials are doing.

KORA currently allows government agencies to charge a fee that “shall not exceed the actual cost of furnishing copies, including the cost of staff time required to make the information available.” K.S.A. 45-219(c)(1). While that provision sounds reasonable on its face, over the years, agencies have tended to take the position that their costs for staff time are increasing and so they charge ever higher fees to records requesters. The agencies can continue raising fees, because KORA does not define “cost of staff time” in a limiting way. As the fees continue to go up, the public and the news media are “at the mercy of some public bodies that charge rates that are so outrageous that public records are closed by default because no one—including many of the newspapers in Kansas—can afford to pay.”

A recent example of the high cost of obtaining records was when the University of Kansas billed the requester over $1,800.00 in 2014 to respond to a particularly voluminous request. According to the Lawrence Journal-World, “KU’s itemized calculation of the cost of getting the records includes $1,430 for 22 hours of manager time to retrieve and review at $65 per hour; $264 for 8 hours of staff time to retrieve, assemble for production: $100 for two hours of specialized computer retrieval at $50 per hour; and $1.50 for the digital transmission or mailing fee. The total estimate is $1,795.50.”

Although KU complied with KORA by charging only for its actual costs, the total fees illustrate that the costs of producing records can be so high as to discourage or even prevent access to records. Proposed legislation has been considered that would change KORA and limit fees agencies can charge to records requesters. In particular, amended Senate Bill 98 has been referred to the Senate Committee on Judiciary. According to a proposed new section and supplemental note accompanying the bill, it would require that “Staff time would be charged at the lowest hourly rate of the person who is qualified to provide the public record.” Agencies would thus still be allowed to charge for “staff time,” despite the fact that original versions of the bill sought to eliminate fees for finding and producing a record and allow only a charge for copying it.

This compromise stemmed in part from debate during the 2013-14 session of the Legislature, when numerous county officials appeared to testify against a limit on fees. A number of the witnesses were from Register of Deeds’ offices, some of which serve particularly mineral rich counties. Those opponents testified in part that an inability to charge for staff time would be financially devastating, mostly because of time-consuming and costly responses to requests made by commercial interests and by small minority of “customers who request records over and over again” and who “use KORA as a way to disrupt operations.” Those opponents identified the main culprits as “acquisition companies, land/title companies and attorneys, just to name a few,” and emphasized that “nearly all of our copy requests come from the business sector.” Further, Registers of Deeds in larger counties concur, believing that the bill would only encourage “the Oil and Gas Companies, Title companies, Attorneys, etc. to take advantage of County Government.”

Rather than focusing on the problems specifically caused by commercial and abusive records requesters, however, SB 98 takes a broad approach that would apply equally to all. The bill would require that any “staff time shall be charged at the lowest hourly rate of the person who is qualified to provide the public records.” New Sec. 1(a)(3). However, this compromise still seems ripe for abuse, especially if an agency determines that a highly paid employee is the only one “qualified” to review the records. Furthermore, it may not be substantially in keeping with the original version of SB 98, which sought to prevent agencies from charging for staff time, period. Moreover, it does not directly address the problem described by many of the bill’s opponents: that commercial and abusive records requesters are dauntingly costly to serve and so charging high fees is necessary.

However, if advocates for SB 98 could further revise the bill and strike a slightly different balance among competing interest, it might gain enough political traction to be passed. The revision would be to recognize a distinction between types of requesters—those who serve the public interest and those who serve private or disruptive interests. Those who serve the public interest, namely, journalists and ordinary citizens who want to be informed, would only pay $0.25 per copied page, and would not pay a fee for finding and producing a requested record. All others would pay the agencies’ actual cost of responding to their records requests.

Fortunately, it appears that Oklahoma, another state with many mineral-rich small counties (and apparently ample experience with both commercial requesters and folks who use open records laws to disrupt government operations), has worked to balance these interests in its open records law. SB 98 easily could—and should—be revised to include provisions modeled after Oklahoma’s approach.

The Oklahoma Open Records Act (OORA), in 51 O.S. 24A.5(3), provides that “if the request…is solely for commercial purpose, or would clearly cause excessive disruption of the essential functions of the public body, then the public body may charge a reasonable fee to recover the direct cost of record search and copying.” This language empowers county officials to charge reasonable fees in the event of requests by business interests and those who would abuse OORA, but limits agencies to charging all others a fee only for copying a record at a rate of $0.25 per page.

Further, in 51 O.S. 24A.5(3), OORA provides that “[i]n no case shall a search fee be charged when the release of records is in the public interest, including, but not limited to, release to the news media, scholars, authors and taxpayers seeking to determine whether those entrusted with the affairs of the government are honestly, faithfully, and competently performing their duties as public servants.” Further, “fees shall not be used for the purpose of discouraging requests for information or as obstacles to disclosure of requested information.”

The Oklahoma statute specifically draws a distinction between commercial purposes and the media, providing that “publication in a newspaper or broadcast by news media for news purposes shall not constitute a resale or use or a record for trade or commercial purposes and charges for providing copies of electronic data to the news media for a news purpose shall not exceed the direct cost of making the copy.” If this kind of provision were adopted in Kansas, news organizations would have statutory authority supporting their position that their interests are distinct from those of other commercial operations.

Modifying KORA to include provisions like those in the Oklahoma statute should not be difficult. KORA already contains a limitation on commercial requesters. In K.S.A. 45-230(a), KORA states, “No person shall knowingly sell, give or receive, for the purpose of selling or offering for sale any property or service to persons listed therein, any list of names and addresses contained in or derived from public records,” with certain exceptions. Also, KORA already disfavors abusive records requesters. In K.S.A. 45-218(e), KORA provides that and agency may deny access to records “if a request places an unreasonable burden in producing public records or if the custodian has reason to believe that repeated requests are intended to disrupt other essential functions of the public agency.

Fresh Takes respectfully suggests that SB 98’s prospects for passage would be better if it were to include language based on the Oklahoma law, particularly the provisions that allow agencies to charge reasonable fees to requesters, except for those who seek “records in the public interest” such as the news media.