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?