Revising KORA: Strengthening the civil enforcement provision

If a public agency refuses to disclose records in response to a request under the Kansas Open Records Act, and the requester believes the records should have been disclosed, the requester has a few different options under Kansas law to contest the refusal.  The individual can file a complaint with either the county or district attorney where the violation occurred or with the Attorney General’s Office (AGO).  In 2015, the legislature conferred additional powers on the AGO, allowing it to enter “consent orders” or “findings of violation” related to KORA violations.  Local law enforcement agencies and the AGO also have the authority to file civil actions to enforce the law.

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The law also allows for private plaintiffs to sue the public agency which has failed to provide the requested records.  The law even allows for the award of attorney fees so the plaintiff can be reimbursed for such expenses, but as a practical matter, the language of the statute makes a fee award very unlikely.  To incentivize compliance with KORA, the legislature should consider revising the statute to make such awards more probable.

The key language appears in K.S.A. 45-222(d), which provides that “the court shall award costs and a reasonable sum as an attorney’s fee for services rendered in such action, including proceedings on appeal, to be recovered and collected as part of the costs to the plaintiff if the court finds that the agency’s denial of access to the public record was not in good faith and without a reasonable basis in fact or law (emphasis added).”

Thus, even though the word “shall” appears, denoting a mandatory action by the court, the reality is that the private plaintiff will not recover attorney fees unless the agency’s denial was both “not in good faith” AND “without a reasonable basis in fact or law.”  The “not in good faith” provision is particularly troubling, because simple ignorance of the law seems to preclude an attorney fee award.  Moreover, the Kansas Supreme Court’s interpretation of K.S.A. 45-222(d) makes the “good faith” standard shockingly easy for agencies to meet, allowing an agency to argue that it acted in good faith so long as the “basis for withholding information has not been previously considered by state courts.”[1]

Other states have done away with the “good faith” requirement, which makes an attorney fee award much more likely.  In Florida, the plaintiff must prove only that the agency “unlawfully refused” to disclose the records. Oklahoma law is even more favorable, as “successful” plaintiffs “shall be entitled to reasonable attorney fees.”

While an amendment along the lines of the Oklahoma law might be too extreme given the current state of the law in Kansas, simply striking the good faith provision would greatly improve the statute.  A revised version of K.S.A. 45-222(d) could simply look like this:

“The court shall award costs and a reasonable sum as an attorney’s fee if the court finds that the agency’s denial of access to the public record was not in good faith and without a reasonable basis in fact or law.”

Until the legislature makes a change, those who believe they have been wronged by a public agency’s denial of a KORA request and lack confidence that public agencies will enforce the law against other public agencies are forced to pursue other options in order to pay for litigation.  Although such cases rarely include an award of monetary damages against a public agency, and thus are of little interest to third-party litigation investment platforms like LexShares, crowdfunding legal fees through organizations like Funded Justice is an option gaining traction.

Like kickstarter.com or gofundme.com, an individual seeking funding through a site like Funded Justice publishes a narrative about the case to entice donors that may or may not include pictures, documents, or other images.  However, “[a]s with all public websites, users should be careful about what they reveal online. This is especially true of legal situations. Published facts and information become the property of each of these sites – read the company’s terms of use for details – and could come back to haunt you in future legal proceedings. Be cautious about what information you include, and read the fine print before you hit publish!”  Any plaintiff considering crowdfunding a case would be well-advised to discuss the pros and cons of crowdfunding a legal case with an attorney before proceeding.

Finally, the AGO has had less than 18 months to implement its enforcement provisions enacted July 1, 2015.  If that office ramps up enforcement, and the legislature strikes the words “not in good faith” from K.S.A. 45-222(d), crowdfunding may not be the only realistic way to pay for KORA litigation.

[1] Hull, Katrina G. DISAPPEARING FEE AWARDS AND CIVIL ENFORCEMENT OF PUBLIC RECORDS LAWS, 52 U. Kan. L. Rev. 721, 745 (2004).

Max Kautsch is the Kansas legal hotline attorney for the Kansas Press Association, the Kansas Association of Broadcasters, and the Kansas Sunshine Coalition.  Send him an email here.