Revising KORA: Eliminating the “slow walk” of K.S.A. 45-218(d)

Public agencies in Kansas sometimes need more than the three days allotted in the Kansas Open Records Act (KORA) to respond to a public records request.[1]  For example, requested records may be stored in a way that makes them difficult for an agency to find and produce, such as if the records are many years old, or if the request is particularly voluminous.

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When that happens, K.S.A. 45-218(d) of the KORA requires that agencies are to specify when and where they ultimately will disclose the records: “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.”[2]  And if the agency undertakes in good faith to produce the requested record by the stated time and date, but discovers it cannot meet its own deadline, the agency could remain in compliance with K.S.A. 45-218(d) by simply alerting the requester of a new time and date the agency anticipates the records will be available.

But some Kansas agencies, such as the Secretary of State’s office when faced with a records request from a national media outlet in 2018, refuse to provide the “detailed explanation of the cause for further delay” or, just as critically, an “earliest time and date that the record will be available for inspection.”  To Kansas open government advocates, agencies that don’t specify when the records will be available and make a requester wait indefinitely are engaged in a “slow walk.”

Unfortunately, the Kansas Attorney General’s Office, which is responsible for enforcing the KORA, has not opposed the “slow walk” by agencies and even has, itself, engaged in it.  In 2017, when a Topeka Capital-Journal reporter requested records from the Kansas Attorney General’s Office, the assistant attorney general assigned to the matter “said she couldn’t provide an exact date and time for when the records would be available.”

The AG’s “slow walk” in that case was consistent with its interpretation of K.S.A. 45-218(d) set forth in the most recent edition of its “Citizen’s Guide to Open Government,” published in 2017.  According to page 10 of the Guide, the AG’s office advises that if the agency cannot provide the requested record within three days, it may “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.”

The Guide makes no mention of the critical second sentence in K.S.A. 45-218(d), which says agencies “shall” state “the place and earliest time and date that the record will be available for inspection.”  Rather, the AG’s interpretation of that language is essentially that the word “shall” really means “may.”  In other words, the AG believes the word “shall” is “directory,” rather than “mandatory.”  Is that interpretation credible?

In State v. Rashchke, 289 Kan. 911, 919 (2009), the Kansas Supreme Court set forth factors that “are among those to be considered in determining whether the legislature’s use of ‘shall’ makes a particular provision mandatory or directory: (1) legislative context and history; (2) substantive effect on a party’s rights versus merely form or procedural effect; (3) the existence or nonexistence of consequences for noncompliance; and (4) the subject matter of the statutory provision, e.g., elections or notice on charges for driving under the influence.”  Examination of these factors indicate the AG’s interpretation does not stand up to scrutiny.

Legislative context and history

“Legislative context and history can be crucial to the distinction between a mandatory ‘shall’ and a directory ‘shall.’”  Rashchke, 289 Kan. at 915.   In the KORA, the Kansas Legislature explicitly declares “the public policy of the state” is 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).  In K.S.A. 45-218(a), the KORA provides that “[a]ll public records shall be open for inspection by any person, except as otherwise provided….”   Subsequent provisions in K.S.A. 45-218(d) mandate the process by which a public agency must make requested records available for inspection.

Moreover, the word “shall” appears repeatedly in K.S.A. 45-218—five times in subsection (d) alone.  Through the repeated use of “shall,” the Legislature imposed a duty upon public agencies to respond precisely in the prescribed way to any person’s records request.  The Legislature’s intent that “shall” be mandatory is further indicated by its use of “may” to indicate when a public agency could act discretionarily.  For example, K.S.A 45-218(f) provides that “[a] public agency may charge and require advance payment of a fee for providing access to or furnishing copies of public records, subject to K.S.A. 45-219.”  (Emphasis added.)

The Legislature is plainly mandatory in declaring that “public records shall be open” and that KORA must be liberally construed in favor of openness.  This crucial factor clearly cuts in favor of the conclusion that the word “shall” in the second sentence of K.S.A. 45-218(d) is mandatory rather than directory.

Substantive effect on a party’s rights

In 1972, the United States Supreme Court found “[w]e do not question the significance of free speech, press, or assembly to the country’s welfare. Nor is it suggested that news gathering does not qualify for First Amendment protection; without some protection for seeking out the news, freedom of the press could be eviscerated.”[3]  Failing to specify the place and time for disclosure of public records—as required in the second sentence of K.S.A. 45-218(d)—is a step toward such evisceration.

In many instances, open records requests are made by journalists or other members of the public seeking information that sheds light on a public interest issue.  Significant benefit may be realized from “receiving the information quickly, such as its contribution to a current public debate or any harm to the public that could result from delayed release.”  A “common challenge for journalists is a delay in getting a response from an agency or in receiving the documents.”

When public agencies delay disclosure of requested records and fail to specify when and where the records will be available, the agencies infringe on First Amendment rights and harm the public.  Thus, under Rashchke, where KSA 45.218(d) says agencies “shall” specify the time and place records will be available, the language is mandatory.

The existence or nonexistence of consequences for noncompliance

The Rashchke court held that “the existence or nonexistence of consequences for noncompliance” favors an interpretation that the statute is mandatory.  The KORA contains a specific penalty section, K.S.A. 45-222, which provides the basis for requesters to bring private enforcement actions in district court.  That statute also includes penalties for public agencies in violation of that law, including potential payment of the requestor’s attorney fees.  The Attorney General, as the primary enforcer of open government laws in the state, is also vested with the power to bring court actions and impose fines and sanctions, although how it would do so in a case involving its own office, such as here, remains unclear.  Thus, this factor indicates that the word “shall” as it appears in the second sentence of K.S.A. 45-218(d) is mandatory.

The subject matter of the statutory provision

The Rashchke court indicated that the word “shall” is mandatory when it appears in in statutes on such subject matter as electoral rights and law enforcement   The KORA concerns disclosure of public information that aid in democratic self-governance and also includes enforcement provisions.  Thus, this factor also indicates that the word “shall” as it appears in the second sentence of K.S.A. 45-218(d) is mandatory.

In light of Rashchke, the Attorney General’s Office should accept that “shall” in the second sentence of K.S.A. 45-218(d) is mandatory, not directory.  The AG’s failure to treat “shall” as mandatory in the KORA is troubling, because its Citizen’s Guide has been widely read by both public agencies and records requesters alike.  Moreover, that office is responsible for enforcing KORA’s penalty provisions.  Also noteworthy is the fact the Kansas Supreme Court has awarded attorney fees to a newspaper when the agency that had received the newspaper’s KORA request violated K.S.A. 45-218(d).  There, the agency failed to produce a “prompt response to records request.”  Telegram Pub. Co., Inc. v. Kansas Dept. of Transp., 275 Kan. 779 (2003).

One solution might be for the legislature to amend the KORA to beef up the concept of a deadline.  In Texas, if the records cannot be produced at the time requested, the custodian sends to the requestor 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 requestors, 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).

But the KORA, in K.S.A. 45-218(d) as currently written, requires public agencies to communicate “an earliest date and time” requested records will be available.  If the Attorney General’s Office were to accept the plain language of K.S.A 45-218(d), as it should, the “slow walk” would end, which would serve the public interest in having timely information about what the government is doing.

Max Kautsch is the Kansas legal hotline attorney for the Kansas Press Association, the Kansas Association of Broadcasters, and the Kansas Sunshine Coalition for Open Government, and is an adjunct faculty member at Washburn University teaching Mass Media Law.

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[1] “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.”  K.S.A. 45-218(d), first sentence.

[2]   K.S.A. 45-218(d), second sentence.

[3] Branzburg v. Hayes, 408 U.S. 665, 681 (1972).