Kansas open records, not quite

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I NVESTIGATIVE R EPORT FOR IMMEDIATE RELEASE May 29, 2009 Contact: Paul Soutar (316) 634-0218 Determination and Preparations for a Lawsuit Slowly Extract Public Data Seven weeks after the original request, Saline County’s appraiser, under pressure from an impending lawsuit, delivered some of the property tax data sought by the Flint Hills Center for Public Policy from all Kansas counties. As of May 29, 44 of 105 Kansas counties have not provided all the requested data. What started out as research into property valuations in Kansas has turned into a frustrating protracted battle over differing perspectives on open government. Denials and delays have slowed or prevented examination of government fiscal policy as budget and taxation issues were being addressed in the legislature. Access was further frustrated by decades-old computer technology. Open government laws like the federal Freedom of Information Act (FOIA) and the Kansas Open Records Act (KORA) are designed to ensure citizens have access to government information and are an important aid in maintaining citizen control of government. One of the issues cited by Saline County and others is whether a county can legally withhold 2009 appraised totals until all taxpayer appeals have been processed. Ellen Mitchell, in a May 20 e-mail to Flint Hills, said, “The records will be available in a short period of time. A lawsuit to compel seems to be a waste of time, money and judicial resources at a time we need to be conserving money and resources.” Flint Hills’ president Dave Trabert responded that, “a lawsuit to compel government to release public information is, in my mind, time and money well spent.” More than half of Kansas counties had already provided all the data requested and Flint Hills is receiving more data each day. “If that’s what it takes to force government agencies to uphold their duty for openness and transparency that’s an unfortunate thing,” said Caleb Stegall, attorney for Flint Hills. Saline County and others also insisted that their open records form must be completed. Trabert refuses to do so, saying that everything the county is entitled to receive has already been submitted in writing. “Other counties initially raised the same issues but most accepted our explanation and have either submitted the information or are in the process of doing so,” said Trabert. “I’m told that Sumner County’s attorney is doing research to reply to our open records request.” Flint Hills e-mailed requests to appraisers for 104 Kansas counties on April 15, 2009. (Sedgwick County was already gathering the data and didn’t require a written request). Initial replies ranged from full and speedy fulfillment to no reply at all. In a few cases the reply was the equivalent of saying “go away,” according to Trabert. As of May 29, more than a month later, 61 have provided full data, 34 sent partial data and 8 say they are collecting the data. Comanche County has still not responded to e-mails and phone messages. Saline County Appraiser Rod Brodgerg had not responded to a request for the remaining data as of this writing. Trabert says he is hoping that lawsuits are not necessary to force compliance by the 44 counties that have not submitted complete information, but is fully prepared to do so. KORA allows three business days to respond to, though not necessarily fulfill, a request. The law says, “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.” Unfortunately, citizens and journalists have broad experience with state and local government not abiding by the clearly-stated spirit or the more murky letter of the law. In a 1999 collaborative statewide audit conducted by journalists and other open government advocates, about 85 percent of requests were fulfilled but the audit also found significant problems. A Wichita Eagle reporter seeking a basic crime report in Harper County refused to answer questions beyond what the law allows and was briefly detained by sheriff’s officers. “If government only gets 85% of things right they deal with, that’s pretty bad,” said Randy Brown in a recent interview. Brown is the executive director of the Kansas Sunshine Coalition for Open Government. “No business would tolerate that margin of error, and no government should.” Jean Hays, deputy editor for news at the Wichita Eagle, says most of the paper’s KORA requests are promptly filled but there are still problems. “We do sometimes encounter reluctance of agencies to release information or to release it in a timely manner. We disagree at times with some agencies that believe KORA exempts some records.” Flint Hills’ difficulty in obtaining timely information fell into several categories and point to broader problems with open government in Kansas. Creating or accessing records Governments subject to KORA are not required to create records, only to provide copies of records that they normally have. So if a citizen asks for several pieces of data that are on file but not normally compiled into a report, the agency may refuse to deliver the data. Ellsworth County Counselor Joe Shepack refused to provide data in a summary format that was readily available but offered access to thousands of individual parcel records from which the analysis would have to be laboriously gathered. “I find it interesting that you have other counties which have the time and personnel to create records for you,” Shepack said. Ellsworth County received the free program that would facilitate compiling the requested data. Technology problems Kansas county appraisers use a computer-assisted mass appraisal (CAMA) system to manage property appraisals. The system used by most counties, purchased in 1989 and based on 1975 technology, stores data for only two years, current and previous. Any data older than the previous year is stored outside the system and can only be reloaded into the system after the current or previous year’s data is removed. Some appraisers said this technological limitation made it difficult and possibly risky for them to retrieve data that would allow an analysis of certain property value trends. Several appraisers figured out how to access the data on their own. The Harvey County appraiser contacted Manatron, their CAMA software support vendor, which provided a short program and distributed it at no charge to the 79 Kansas counties it supports. Another software support company charged Flint Hills a small fee for a similar program written for its nine Kansas customers. One of those customers, Miami County, has thus far refused access to the data. Several Kansas counties have already switched to a newer appraisal system, Orion, which allows archiving and analysis of many years of data both by appraisers and through an online portal. The system will allow each county to set the level of online access for the public. Enforcement problems A representative of the Kansas Attorney General’s office told Trabert the attorney general’s office can not intervene in a complaint about a county’s lack of compliance with an open records request. A formal complaint can be filed with the county attorney, but if the complaint is denied the only alternative is to file a lawsuit. Fees charged exceed legal limits Some counties asked for fees that exceeded the cost of staff time to provide the records. KORA permits only actual costs for staff time and copying to fulfill the request. Ellsworth County sets fees unique to its county for searching and copying public records in response to KORA requests: • $10 to search for a readily accessible record in the county courthouse • $30, plus an hourly fee of $30 beyond the first half-hour, to view a record stored at the county courthouse • $60, plus an hourly fee of $60 beyond the first half-hour, to access records stored outside the county courthouse • $60 per hour if an elected official is required to travel in response to a KORA-related subpoena “There’s no reason we should have to pay people to comply with the law or make exceptions to the law, Brown said. Many counties waived any fees to Flint Hills, and some of those initially requesting fees higher than actual costs modified the charges after being made aware of the law. The Ellsworth County appraiser recently contacted Trabert and provided the data which the county’s lawyer refused to provide. Ignorance of the law The original KORA request from Flint Hills referenced the Kansas KORA statute, but many of the county employees contacted seemed unaware of the specifics of the law. “I truly believe some of this is not people trying to refuse public data but probably just not clear or certain of what the law says,” said Trabert. Some counties demanded use of their open records form that asked for more than the requester’s name, address and a description of the records requested, the only requirements under KORA. For example, Leavenworth County’s form includes a space for the requester’s employer and the reason for the request. The law says any citizen can access open records and that a “public agency may require a written request for inspection of public records but shall not otherwise require a request to be made in any particular form.” Flint Hills refused to complete individual county forms on the basis that all of the legally permitted information had already been provided; all but Sumner and Ness counties have since withdrawn that demand. Trabert says if someone gets a KORA request the response should be, “How can we help you?” He questions a perspective focusing on denial of records requests. “If the goal is to help people get information, you don’t need to understand all the nuances of what you don’t have to do. Look for reasons to give the information, not reasons not to give it.” “The initial response was mostly a variety of ways of saying, ‘No,’” Trabert said during a recent interview in his office. “‘The data’s not certified, come back in two months.’ ‘I don’t have it, contact someone else.’ ‘You must fill out our form.’ ‘We don’t have the data in that format so we’re not required to give it to you.’” During the interview Trabert received a phone call from an attorney representing a county that had not provided the data. Trabert spent several minutes explaining how a free program could enable the county’s computer system to access and report the data. Several thick stacks of documents dotted his desk, correspondence from counties giving one reason or another for not providing the requested records. According to national evaluations on open records law, KORA has room for improvement. A 2008 study by the Better Government Association (BGA) ranked Kansas’ open records law 18th in the nation. A 2007 study by BGA and the National Freedom of Information Coalition gave Kansas an F and ranked the state 25th out of 50. A 2002 study by BGA and Investigative Reporters and Editors gave Kansas a D. “There are too many exemptions to the law,” said Brown. “There are hundreds of exemptions buried in law that are not KORA.” There are 48 exemptions within the KORA statute and more than 300 in other Kansas laws. Jim Hollingsworth, executive director of Information Network of Kansas, knows his organization’s work is important to local government transparency. “The state is working very hard to provide transparency. That’s what KanView (http://www.kansas.gov/kanview/) is all about.” Hollingsworth says it’s tough asking for technology upgrades in a time of tight budgets. It’s also a challenge to change personal culture. He says people get comfortable with a way of doing things and they’re not going to change unless you prove its better for them. “If you have a burning platform underneath you, you’re more amenable to change,” he said. “Local governments are going to plead poverty or say they don’t have the staff or the money or open government is just a little too much trouble,” Brown said. Brown’s Sunshine Coalition and its members, including the Flint Hills Center for Public Policy, are working to educate the public about the importance of government transparency, improve the KORA law and encourage local governments to modernize and be more open. In 1861 Kansas was set up with 105 counties so county seats would be within a one-day horseback ride for any resident. Today’s citizens aren’t likely to saddle up and ride to the county seat to check on local government. They’ll either demand modern access or be saddled with the government they allow. “If they’re not in the 21st Century, it’s time governments get with it,” Brown said. “No matter what the excuse, it’s still a violation of the law.” Open Records, Open Meetings Training The office of the Kansas attorney general has set up regional KORA and Kansas Open Meetings Act (KOMA) training at four sites around the state in June. Elected and appointed officials, staff of state and local agencies, media and the general public are invited to attend. All events begin at 9 a.m. and end at noon. Dodge City, June 23 Olathe, June 24 Topeka, June 25 Wichita, June 26 More information and registration forms are available by clicking on the KORA/KOMA Workshops link at KSAG.org. # # # Paul Soutar is an Investigative Reporter with the Flint Hills Center for Public Policy. A complete bio on Mr. Soutar can be found at http://www.flinthills.org/content/view/6/5/, and he can be reached at paul.soutar@flinthills.org. To learn more about the Flint Hills Center, please visit www.flinthills.org. The Flint Hills Center for Public Policy is an independent Kansas-based think tank that provides research and initiates reform in education, fiscal policy and health care. We are dedicated to the constitutional principles of limited government, open markets, and personal responsibility, which we believe are essential for individual freedom and prosperity to flourish. 250 N. Water, Suite #216 Wichita, Kansas 67202-1215 (316) 634-0218 information@flinthills.org www.flinthills.org