The Kansas Open Records Act (KORA) does not “require a request to be made in any particular form,” and requests may be made orally, although an agency “may require a written request.” While such flexibility in the nature of the request may seem to favor those who request documents, especially those who are not lawyers, the fact that there is no standard form actually serves to protect public agencies. If the request is made orally, an agency may not give the request the attention it should, or may not assume a full response is necessary. Moreover, certain obligations are not triggered unless they are included in the request. The reality is that the best way to ensure compliance by any public agency is to submit written requests drafted in such a way as to trigger every legal obligation the agency has under KORA.
Routine written requests would combat an issue I often hear about: how agencies, because of a management change or some other reason, reverse course on a policy in favor of disclosure. For example, a recently hired police chief might discontinue the previous administration’s practice of regularly disclosing blotter information, or a newly elected mayor may decide that documents to be discussed at a city commission meeting do not have be disclosed until after they are actually discussed. Such decisions can be extremely frustrating to journalists and members of the public who are used to getting such information without any hassle.
Another frustration occurs when an agency denies a request for public records and fails to cite the legal reason for nondisclosure. Unfortunately, KORA doesn’t require the agency to give an explanation, unless the requester expressly asks for a “written statement of the grounds for denial.” Written requests that include such a statement will go a long way toward learning the agency’s position in the matter, and give legal counsel a better opportunity to evaluate whether the denial was legal. Although such a request for explanation could be made orally, such requests are probably legally insufficient because there is no written record demonstrating that the requester triggered the agency’s obligation to explain the “grounds for denial.”
But the reality is that the agencies in these examples are only required to disclose public records pursuant to the procedure set forth in KORA. If it wants to, the agency is allowed to impose KORA’s rules on all records requests, which could include requiring written requests and making records available only after a three-day waiting period. It can chose to do this even in instances where it would seem to make more sense to quickly respond via email. Fortunately, if an agency plays hardball, one seeking records can too.
For example, if I were faced with the above hypothetical regarding the new police chief, my advice would be to draft stock language to include in a written request that I would fire off every day via email to the agency’s records custodian. I would quote from the definition of criminal investigation records in K.S.A. 45-217(c), setting forth the information that is not exempt from disclosure, and I would remind the agency of its obligation to provide reasons for denial, if any, with cites to KORA.
IT IS EXTREMELY IMPORTANT TO ASK FOR THE WRITTEN BASIS FOR THE DENIAL IN EVERY KORA REQUEST. If the agency is not asked to explain its rationale, it is not required to do so under K.S.A. 45-218(d). Without the basis for denial, evaluating the legality of the denial is more difficult.
Ideally, the law enforcement agency in my example would get the picture after a few daily emails and enter into a reasonable conversation with the news organization about how to disseminate records in a more efficient and friendly fashion. But in order to get there, pressure via legal means may need to be applied.
Thus, my daily KORA request to the hypothetical police department would look something like this:
I hereby submit this request under the Kansas Open Records Act (KORA) via email and regular mail for physical or electronic copies of the following public record or records:
Any and all documents related to any arrests made within the previous 24 hours, including but not limited to the front page of any offense reports, police blotter entries, court records, rosters of inmates of jails or other correctional or detention facilities or records pertaining to violations of any traffic law other than vehicular homicide.
As you are aware, it is the public policy of the state of Kansas that “public records shall be open for inspection by any person unless otherwise provided by this act, and this act shall be liberally construed and applied to promote such policy.” K.S.A. 45-216(a). If a record subject to this request “contains material which is not subject to disclosure” under KORA, you are required to “separate or delete such material and make available” the “material in the public record that is subject to disclosure.” K.S.A. 45-221(d).
KORA requires that this request be acted upon as soon as possible, but in any event “not later than the end of the third business day following the date that you receive the request.” K.S.A. 45-218(d). If access to the requested record or records is not granted immediately, KORA requires you “to 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.” K.S.A. 45-218(d).
If there is a cost associated with meeting this open request under K.S.A. 45-219, please indicate the approximate cost, both for copies and for any staff time that might be required to complete the request. K.S.A. 45-219(c)(5) defines a reasonable charge for physical copies as equal to or less than $.25 per page. If both physical and electronic copies of the requested record or records are available, and the cost of disclosing electronic records is lower than that of disclosing physical copies, I request that you provide electronic copies only.
If this request is denied, KORA requires that you provide me with “a written statement of the ground for denial. Such statement shall cite the specific provision of law under which access is denied.” K.S.A. 45-218(d). In the event of denial, I hereby request that this “statement” be furnished to me “no later than the end of the third business day following the date that the request for the statement is received.” K.S.A. 45-218(d).
In the event any record or records are disclosed as a result of this request, I certify, in accordance with K.S.A. 45-220(c)(2), that I do not intend to, and will not: “(A) Use any list of names or addresses contained in or derived from the records or information for the purpose of selling or offering for sale any property or service to any person listed or to any person who resides at any address listed; or (B) sell, give or otherwise make available to any person any list of names or addresses contained in or derived from the records or information for the purpose of allowing that person to sell or offer for sale any property or service to any person listed or to any person who resides at any address listed.
Thank you for your assistance.
Although it may seem annoying to file a written request, especially when past responses have not necessitated one, the tools are available to compel compliance. At the very least, in the event of denial, each and every request should be drafted to force the agency to explain why the denial occurred. Then, a more informed legal determination can be made as to its validity.
Max Kautsch is the Kansas legal hotline attorney for the Kansas Press Association and the Kansas Association of Broadcasters. Send him an email here.