Wichita Downtown Development Corporation and City of Wichita refuse to follow Kansas Open Records Act

On October 15 I made a request under the Kansas Open Records Act, asking for agendas and minutes of the board meetings of the Wichita Downtown Development Corporation for 2009. The City of Wichita, and later the WDDC, denied this request.

In its denial, the city stated: “The WDDC is a non-profit organization. Such entities do not become subject to the KORA merely by the receipt of some of their funding from the City, which is used to pay for services from the WDDC.”

It’s true that the WDDC is organized as a 501 (c)(3) tax-exempt corporation. But this is not relevant to whether the WDDC is considered a public agency as defined by the KORA.

The statute that makes the WDDC subject to the KORA is KSA 45-217 (f)(1), which states: “‘Public agency’ means the state or any political or taxing subdivision of the state or any office, officer, agency or instrumentality thereof, or any other entity receiving or expending and supported in whole or in part by the public funds appropriated by the state or by public funds of any political or taxing subdivision of the state.”

The WDDC is wholly supported by a special property tax district. Its only other income listed on its IRS form 990 for 2008 is a small amount of interest income, presumably from investment of unspent funds. (2008 WDDC revenue was $610,214 from the tax district, and $21,953 from investment income on a balance of $530,235 [end of 2008] in savings and temporary cash investments.)

In denying the request, the city cited two statutes:

KSA 45-217 (f)(2)(A), which gives criteria under which bodies might not be considered a public agency, states: “Any entity solely by reason of payment from public funds for property, goods or services of such entity.” The purpose of this exception is so that every vendor that sells goods and services to government agencies is not subject to the KORA for that reason alone. For example, if a city buys office supplies, that vendor is not subject to KORA simply for that reason alone.

But this statute contains an important qualifier: the word “solely.” In this case, the relationship between the City of Wichita and the WDDC is not merely customer and vendor. Instead, the city created a special tax district that is the source of substantially all of WDDC’s revenue. The existence of the district must be renewed by the city soon. The WDDC performs a governmental function (the promotion of the city’s downtown) that some cities decide to keep in-house. The WDDC has only one “customer,” to my knowledge, that being the City of Wichita.

It’s clear that this exception does not apply to the WDDC.

The city also cited KSA 45-221 (a)(20) which defines a category of records that a public agency shall not be required to disclose as follows: “Notes, preliminary drafts, research data in the process of analysis, unfunded grant proposals, memoranda, recommendations or other records in which opinions are expressed or policies or actions are proposed, except that this exemption shall not apply when such records are publicly cited or identified in an open meeting or in an agenda of an open meeting.” I’m not sure why the city cited 45-221(a)(20). It doesn’t seem pertinent.

A few years ago the Topeka Capital-Journal asked for records from Schools for Fair Funding, a non-profit organization established by some Kansas public school districts, and funded by those school district’s tax revenues. SFF claimed that it was exempt from the KORA. In a settlement before trial, SFF agreed to comply with the KORA and to provide the records the Capital-Journal requested. Furthermore, SFF agreed to contribute $12,500 to the Sunshine Coalition for Open Government. (“Paper, group settle lawsuit” Topeka Capital-Journal, March 6, 2007)

While this settlement is not binding precedent, SFF realized that it was, in fact, a public agency according to the KORA, and it decided to comply with the law.

The Wichita Downtown Development Corporation would be wise to come to the same realization.

Larry Weber, Chairman of the WDDC, in what he termed an effort to foster cooperation, stated to me that if I would name a specific issue or item that I want information on, he would be “better able to address my request.”

But that’s not the way the law works. The citizens of Wichita are entitled to all the records of the WDDC that fall within the scope of the KORA.

The refusal by the WDDC and the City of Wichita to comply with the Kansas Open Records Act leads me to ask these questions:

What is the true reason for the refusal of the WDDC and the City of Wichita to turn over the requested records?

Does the WDDC or the City of Wichita have something to hide from citizens?

If the WDDC will not follow the Kansas Open Records Act, should we trust this organization with the planning for the revitalization of downtown Wichita?

What is the position of the mayor and each city council member on this issue? What is the position of each board member of the WDDC? Are they supportive of the WDDC and the City’s refusal to obey the law?


14 thoughts on “Wichita Downtown Development Corporation and City of Wichita refuse to follow Kansas Open Records Act”

  1. Bob,
    I am a little taken back by your posting. Yesterday I emailed you and asked you if you could be a little more specific on your request, thinking that I could save you time (and Trees) in getting you what specific information you needed. Your post basically says that I said no to your request, which is the furthest thing from the truth. You responded to one of the two questions in my email but not to the one asking for more specifics. So I assumed you were putting that list together. As I said in my email and I am saying again I want to foster cooperation and address your request. Since I now know you want all the minutes and agendas for 2009 I will be happy to get them for you. I have made copies for you. Call me to make arrangements to pick them up. It seems there are different opinions in the legal community over the Open Records Act. I am sure you and I want to be as open and cooperative together as together we move Wichita forward.
    Larry Weber
    ph. 261 5325

  2. Good for Larry Weber…whoever he is. WDDC should be open and transparent to the community. Eventho they are a 501(c)3 they receive public funds which makes them public.

  3. Bob,
    You have the right to file a complaint with the Kansas Attorney General over this very important issue. In addition, find a “friendly to your cause” legislator and ask for him/her to get an attorney general’s opinion on this subject which will become part of the record. Finally, when the legislature session begins ask for an amendment to KORA making sure that anyone in your situation can force compliance.

  4. Don’t back down Bob. The city doesn’t cite statutes like the ones above willy-nilly; they have done so with a specific purpose in mind.

  5. Oh PUHLEEEZE. Instead of trying to make a political statement, all Bob has to do is call Larry and go get what he wants. Nothing hard about that.

  6. Mr. Weber, If you and WDDC were so interested in fulfilling Bob’s request, why the lawyerly citation of statutes in denying the request? Are you saying you and WDDC had nothing to do with the lawyerly denial? If so, what’s up with such a fundamental difference between WDDC and the City?
    Government and quasi-government bodies making use of taxpayer funds should be open to public inspection. Period. Anything else should be treated as an attempt to take and use the citizens’ money without oversight.
    KSA 45-216: “It is declared to be the public policy of the state 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.”

  7. Paul – I am not sure what you are referring to with the Lawyerly comment. Bob made a request of the City. He did not copy us or call us. The City replied to his request – is that where you see a lawyerly tone? When Bob did send a request to myself and the WDDC last Friday afternoon he cited a court case between the Topeka Journal and Schools for Fair Funding saying that the courts ruled in favor of the Journal. Having never heard of that I did look it up and what I found was that the case was settled out of court before it went to trial. In my reply on Monday I asked Bob if what I read was correct or was I in error and I asked if there was something more specific he wanted so I could get everything pertaining to that issue. I don’t think that was a lawyerly request. Bob and I met today and I asked why instead of answering my question he post in the blog that I denied his request. His reply was basically that by my asking for more specifics that is a line he has heard from others and in those cases it meant they were stonewalling. We agreed that I have never given him a reason to mistrust anything I say and therefore I should not be lumped in with others. If he or you have a question about what I say call me (261 5325) email me and I will do my best to clarify. My wife will tell you (and I will agree) that I am not the best as expressing myself be it writing or speaking. I did give Bob what he requested today. Hopefully I have answered your question.

  8. Larry, you had a great reply and an honest answer, but you have to understand that Bob (like most citizens in ICT) have plenty of reasons not to trust the crowd at 455 N. Main. You being the Chairman of WDCC need to gain the trust of all the stakeholders. Trust is earned not automatically given. The leadership at the City legal department use their position to intimidate the citizens and in many instances invent their legal opinions, consequently, you became “collateral damage”. Welcome to Wichita!

  9. Pat, Henry & Others; thank you for the feedback. It is unfortunate that people (& I have to include myself in that) are quick to pre-judge people. Wouldn’t it be nice if we all started from a trusting position of others until they give you reason to not trust them. I am a glass is half full guy! Don’t hesitate to contact me for any needs. ph 261 5325, email larry@garveycenter.com

  10. Larry,

    I to would like to thank you for your posts. I’m glad you got Bob the information he requested. I do think that some organizations do anything they can to get around the Open Records Act and I can see why Bob might get frustrated, but in this particular example concerning the WDCC I think Bob and Paul have completely overreacted. The city could have done a better job in responding to Bob’s request, but you got him the information he requested. Thank you again for the work you do. I think they both owe you an apology, but that’s just my opinion.

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