The organization State Integrity Investigation has conducted an investigation of how states rank regarding integrity and protection against corruption. According to SII, “The State Integrity Investigation is an unprecedented, data-driven analysis of each state’s laws and practices that deter corruption and promote accountability and openness.”
Overall, on the “Corruption Risk Report Card,” Kansas received a letter grade of “C,” ranking it ninth among the states. Journalist Peter Hancock wrote the story for Kansas, opening with “Kansas has a history of enacting major reforms in the wake of scandals. But in the absence of any major uproar, the state is often inclined to leave things as they are, even though there may be significant weaknesses in laws meant to ensure transparency and accountability.”
One area in which Kansas rated low is in “Public Access to Information.” Kansas received a letter grade of “C” in this area. Hancock wrote: “On paper, Kansas has a fairly extensive law, known as the Kansas Open Records Act, or KORA, that is meant to ensure public access to official government records. But enforcement of the measure is left largely to the discretion of the state attorney general and local prosecutors who, according to interviews with researchers and media professionals, may be reluctant to take action. The only other option for citizens seeking records is to file civil lawsuits at their own expense.”
Drilling down to more detail illustrates the discrepancy between what Kansas law says, and what actually happens in practice. On the question “Do citizens have a legal right of access to information?” Kansas received a score of 100 percent.
But on the important question “Is the right of access to information effective?” investigators gave Kansas a grade of 47 percent. Averaging these two scores might produce a letter grade of “C.” But looking at more detail reveals why Kansas is often ranked very low in the more important measure of actual access to records.
Drilling down farther, Kansas rated very low on these measures: “In practice, citizens can resolve appeals to access to information requests within a reasonable time period,” “In practice, citizens can resolve appeals to information requests at a reasonable cost,” “In practice, when necessary, the agency that monitors the application of access to information laws and regulations independently initiates investigations,” and “In practice, when necessary, the agency that monitors the application of access to information laws and regulations imposes penalties on offenders.” The last measure received a score of zero percent.
Despite receiving nearly all its funding from taxpayers, Go Wichita Convention and Visitors Bureau refuses to admit it is a “public agency” as defined in the Kansas Open Records Act. The city backs this agency and its interpretation of this law, which is in favor of government secrecy and in opposition to the letter and spirit of the Open Records Act.
In the following excerpt from the KAKE Television public affairs program This Week in Kansas, this issue was discussed. Randy Brown, who is chair of the Kansas Sunshine Coalition for Open Government and former opinion page editor of the Wichita Eagle appeared along with myself and host Tim Brown.
Brown said this episode was “one of the silliest things I have ever seen. Clearly, Go Wichita fits under the definition of a public agency.”
He also said “The idea that an agency like this that gets millions of dollars from the city would not agree — willingly and happily — to comply with the Open Records Act is really some of the greatest governmental foolishness that I have ran across.”
Brown also said that the level of understanding of the Kansas Open Records Act evidenced by the Wichita City Council is “appalling.”
Offering advice to the council, Brown said that transparency is good for government, as it creates public trust. When agencies go to great lengths to avoid complying, it looks like they’re doing something wrong, even though there probably is no wrongdoing.
Although he did not mention him by name, Brown addressed a concern expressed by Wichita City Council Member Pete Meitzner (district 2, east Wichita). He accurately summarized Meitzner’s revealed attitude towards government transparency and open records as “democracy is just too much trouble to deal with.”
Tim Brown is the host of This Week in Kansas. The show airs at 9:00 am Sundays on KAKE channel 10, and complete episodes may be viewed at KAKE Television This Week in Kansas.
A few notes from the meeting (video may be viewed here or at the end of this article):
Discussion of this matter at the meeting reveals that city staff believes that the annual reports filed by Go Wichita along with periodic checks by city staff are sufficient oversight.
City Attorney Gary Rebenstorf cited the law regarding enforcement of the Kansas Open Records Act, stating that the Kansas Attorney General or the courts is the next step to seek enforcement of KORA. While Rebenstorf is correct on the law, the policy of the Kansas Attorney General is to refer all cases to the local district attorney. The Kansas AG will not intervene in this matter.
Randy Brown, who is chair of the Kansas Sunshine Coalition for Open Government and former opinion page editor of the Wichita Eagle was at the meeting and spoke on this matter. In his remarks, Brown said “It may not be the obligation of the City of Wichita to enforce the Kansas Open Records Act legally, but certainly morally you guys have that obligation. To keep something cloudy when it should be transparent I think is foolishness on the part of any public body, and a slap in the face of the citizens of Kansas. By every definition that we’ve discovered, organizations such as Go Wichita are subject to the Kansas Open Records Act.”
Brown said that he’s amazed when public officials don’t realize that transparency helps build trust in government, thereby helping public officials themselves. He added “Open government is essential to a democracy. It’s the only way citizens know what’s going on. … But the Kansas Open Records Act is clear: Public records are to be made public, and that law is to be construed liberally, not by some facile legal arguments that keep these records secret.”
He recommended to the council, as I did, that the contract be contingent on Go Wichita following the Kansas Open Records Act.
John Rolfe, president of Go Wichita, told the council that he has offered to provide me “any information that is relevant” regarding Go Wichita. He mentioned the various financial reports his organization provides. He said he is unclear on the transparency question, and what isn’t transparent.
Michael O’Donnell (district 4, south and southwest Wichita) asked Rolfe if he had ever denied a KORA request. Rolfe replied no, perhaps not remembering that Go Wichita denied my request.
Misunderstanding the scope of KORA
In remarks from the bench James Clendenin (district 3, south and southeast Wichita) asked the city manager a series of questions aimed at determining whether the city was satisfied with the level of service that Go Wichita has provided. He then extended that argument, wondering if any company the city contracts with that is providing satisfactory products or service would be subject to “government intrusion” through records requests. Would this discourage companies from wanting to be contractors?
First, the Kansas Open Records Act does not say anything about whether a company is providing satisfactory service to government. That simply isn’t a factor, and is not a basis for my records request to Go Wichita. Additionally, the Kansas Open Records Act contains a large exception, which excepts: “Any entity solely by reason of payment from public funds for property, goods or services of such entity.” So companies that sell to government in the ordinary course of business are not subject to the open records law. Go Wichita is distinguished, since it is almost entirely funded by taxes and has, I believe, just a single client: the City of Wichita.
Finally, we should note that the open records law does not represent government intrusion, as Clendenin claimed. Open records laws offer citizens the ability to get an inside look at the working of government. That’s oversight, not intrusion.
Is the city overwhelmed with records requests?
Council Member Pete Meitzner (district 2, east Wichita) asked that there might be a workshop to develop a policy on records requests. He expressed concern that departments might be overwhelmed with requests from me that they have to respond to in a timely fashion, accusing me of “attempt to bury any of our departments in freedom of information acts [sic].”
In making this argument, Mr. Meitzner might have taken the time to learn how many records requests I’ve made to the city. The answer, to the best of my recollection, is that I have made no requests this year to the city citing the open records act. I have made perhaps a half-dozen informal requests, most of which I believe were fulfilled consuming just a few moments of someone’s time.
As to his concern over the costs of fulfilling records requests: The law allows for government and agencies to charge fees to fulfill requests. They often do this, and I have paid these fees. But more important than this, the attitude of council member Meitzner is troubling. Government should be responsive to citizens. As Randy Brown told the council, government should welcome opportunities to share information and be open and transparent.
As for a workshop for city council on the topic of open records: This would probably be presented by Rebenstorf, and his attitude towards the open records law is known, and is not on the side of citizens.
O’Donnell made a motion that the contract be approved, but amended that Go Wichita will comply with the Kansas Open Records Act. That motion didn’t receive a second.
Wichita’s attitude towards citizens
Randy Brown’s remarks are an excellent summation of the morality and politics of the city’s action and attitude regarding this matter.
The council ought to be wary of taking legal advice from city attorney Gary Rebenstorf. He has been wrong several times before when issuing guidance to this council regarding the Kansas Open Meetings Act, which is similar to the Open Records Act. He’s taken the blame and apologized for these violations. He was quoted in the Wichita Eagle as saying “I will make every effort to further a culture of openness and ensure that like mistakes are avoided in the future.”
But Rebenstorf’s attitude, as gauged accurately by Randy Brown, is to rely on facile legal arguments to avoid complying with the clear meaning and intent of the law.
Why city council members — except for Michael O’Donnell — would be opposed to what I have asked is unknown. Perhaps they know that among the public, issues relating to open records generally aren’t that important. Citizens ought to note the actions of Mayor Carl Brewer. The mayor could easily put this matter to an end. He speaks of wanting to have open and transparent government, but when it comes time to make a tough call, his leadership is missing.
It’s becoming evident that Kansans need a better way to enforce compliance with the Kansas Open Records Act. It seems quite strange that local district attorneys are placed in a quasi-judicial role of deciding whether citizen complains are justified. If citizens disagree — and nearly everyone I’ve talked to thinks that the opinion issued by the Sedgwick County District Attorney is this matter is nonsensical and contrary to the letter and spirit of the law — they find themselves in the position of suing their government.
Suing your government is costly. Citizens will realize their own taxpayer dollars are used against them.
I have asked for records from Go Wichita Convention and Visitors Bureau. It refused to comply. Its reason was that it believes it is not a “public agency” as defined in the KORA. When citizens have problems with agencies refusing to comply with the law, one avenue citizens may take is to ask the local district attorney to look into the matter. When I did this, the Sedgwick County District Attorney’s office decided in favor of Go Wichita, using some contorted legal reasoning that few believe would survive judicial scrutiny. It would cost thousands of dollars for the next step.
Why Go Wichita Convention and Visitors Bureau should be subject to the Kansas Open Records Act
Here’s why the Go Wichita Convention and Visitors Bureau is a public agency subject to the Kansas Open Records Act. KSA 45-217 (f)(1) 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 Kansas Attorney General’s office offers additional guidance: “A public agency is the state or any political or taxing subdivision, or any office, officer, or agency thereof, or any other entity, receiving or expending and supported in whole or part by public funds. It is some office or agency that is connected with state or local government.”
Now, apply these guidelines to Go Wichita: The most recent IRS Form 990 that is available (for the year 2009) states that the agency had total revenue of $2,651,600, with $2,266,300 coming from “fees from government agencies.” This is government, through taxation, providing 85 percent of its total income.
If we consider only “program service revenue,” which was $2,467,764, the government-funded portion of its income is 92 percent.
Does this count as being supported “in part” by public funds? Absolutely.
The Kansas Open Records Act has an exception, but I and many others believe it should not apply to this agency. There’s no rational or reasonable basis for the this agency’s assertion that it is not a public agency subject to the Kansas Open Records Act.
We should also look at the plain language of the Kansas Open Records Act, observing the intent of the Kansas Legislature as embodied in the statute: “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.”
Wichita claims transparency
In his “State of the City” address this year, Wichita Mayor Carl Brewer promoted the city’s efforts in accountability and transparency, telling the audience: “We must continue to be responsive to you. Building on our belief that government at all levels belongs to the people. We must continue our efforts that expand citizen engagement. … And we must provide transparency in all that we do.” Many other city documents mention transparency as a goal for the city.
I submit that in order to actually provide the level of transparency that Mayor Brewer proclaims the city should be providing, quasi-governmental agencies that are supported almost totally by tax revenue — like Go Wichita Convention and Visitors Bureau, the Wichita Downtown Development Corporation, and Greater Wichita Economic Development Coalition — need to be subject to the Kansas Open Records Act.
Until this happens, the message from the City of Wichita is clear: Accountability and transparency is handled on the city’s terms, not on citizens’ terms and the law.
Why open records are important
Here’s an example as to why this issue is important: In 2009 Mike Howerter, a trustee for Labette Community College, noticed that a check number was missing from a register. Based on his inquiry, it was revealed that the missing check was used to reimburse the college president for a political contribution. While it was determined that the college president committed no crime by making this political contribution using college funds, this is an example of the type of information that citizens may want regarding the way public funds are spent.
This is the type of information that I have requested. It is what is needed to perform effective oversight. It is what the City of Wichita has decided to avoid.
Issue is buried in consent agenda
Twice last year I appeared before the city council when the city was considering renewal of its contract with Wichita Downtown Development Corporation and Go Wichita Convention and Visitors Bureau. I asked the mayor and council that as a condition of renewing the contracts, the city ask that these agencies agree that they are public agencies as defined in the Kansas Open Records Act.
For the December 13th meeting of the Wichita City Council, the contract for Go Wichita is up for renewal again. But instead of being on a regular agenda — where it is customary for citizens to have a chance to give input to the council — the item is on a consent agenda.
A consent agenda is a group of items that are voted on with a single vote. Usually there is no discussion of the individual items on a consent agenda, unless a council member requests to “pull” an item for discussion and perhaps a vote specific to that item. Usually the items placed on consent agendas are through to be routine and non-controversial.
But a city contract for over $2 million, especially one that has been handled as a regular agenda item in years past, does not qualify as routine and non-controversial. It seems that the city wants to avoid discussion of the open records issue.
As a condition of renewing its contract with the Go Wichita Convention and Visitors Bureau, I asked that the Wichita City Council require that the agency comply with the Kansas Open Records Act. As has been the case before, the city council and city staff say they are in favor of open records and government transparency, but their actions indicate that they are not.
After my remarks, which are presented below, City manager Bob Layton said that my attack on the city attorney was unfair, that it was not he who made this decision not to comply with the Kansas Open Records Act. Instead, he said the decision was made by the Convention and Visitors Bureau’s own attorney. John Rolfe, the Bureau’s president, said he believes that his organization has been open in their explanations of how they spend their funds, at least to the City.
Rolfe also repeated his mistaken belief that I’ve discussed with the Bureau’s attorney how I might gain access to the information that I’ve requested. These discussions have not happened. That’s not the way the Kansas Open Records Law works. Citizens do not negotiate with agencies to gain access to records. The law says that citizens make requests, and agencies comply.
Furthermore, the duty of the Bureau’s attorney is to protect and advance the interests of his client, not the interests of the public. The fact that the city council and the city manager are comfortable with this arrangement is disturbing.
Any member of the city council could have followed my suggestion to make a motion that the city ask that the Convention and Visitors Bureau to simply agree that they are in fact a public agency as defined in the Kansas Open Records Act. But none of them did.
Council member Jim Skelton asked questions several times seeking to find out how the agency spends its funds, but he did not give “how” a specific meaning. The city and most agencies would like to present simple and broad budgets or income statements to account for their spending. But this level of disclosure, which is what the Convention and Visitors Bureau provides to the public, is not sufficient.
Here’s an example why: Last year a trustee for Labette Community College noticed that a check number was missing from a register. Based on his inquiry, it was revealed that the missing check was used to reimburse the college president for a political contribution. While it was determined that the college president committed no crime by making this political contribution using college funds, this is an example of the type of information that citizens may want regarding the way public funds are spent.
This is the type of information that I have requested. It is what is needed to perform effective oversight. Three agencies — Go Wichita Convention and Visitors Bureau, Greater Wichita Economic Development Coalition, and Wichita Downtown Development Corporation — have all refused to comply with requests like this. The city council members and staff have agreed with their positions.
This is not transparency. This is not accountability.
When citizens believe that agencies are not complying with the Kansas Open Records Act, they have three options. One is to ask the Kansas Attorney General for help. But the policy of the Attorney General is to refer all cases to the local District Attorney, which is what I have done. The other way to proceed is for a citizen to pursue legal action at their own expense.
The Sedgwick County District Attorney has had my case since December 17 of last year. That office has been working on the case, and a decision is expected soon.
No matter which way the District Attorney decides, the City of Wichita, its quasi-governmental taxpayer-supported agencies, and their hostility to open records is a matter that the Kansas Legislature should notice. We need a better records law.
Following are remarks I delivered today to the Wichita City Council regarding the city’s compliance with the Kansas Open Records Act.
I’ve requested records from this agency. Its response is that the agency is not a “public agency” and therefore is not subject to the open records law.
Here’s why the Go Wichita Convention and Visitors Bureau is a public agency subject to the Kansas Open Records Act. KSA 45-217 (f)(1) 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 Kansas Attorney General’s office offers additional guidance: “A public agency is the state or any political or taxing subdivision, or any office, officer, or agency thereof, or any other entity, receiving or expending and supported in whole or part by public funds. It is some office or agency that is connected with state or local government.”
According to its 2008 annual report, 89% of Go Wichita Convention and Visitors Bureau’s revenue came from the transient guest tax. I suggest that this qualifies as supported “in whole or in part” by public funds.
The Kansas Open Records Act has an exception, but that does not apply to this agency. There’s no rational or reasonable basis for the this agency’s assertion that it is not a public agency subject to the Kansas Open Records Act.
Mr. Mayor and council members, look at the plain language of the Kansas Open Records Act, as I’ve explained. Look at the intent of the Kansas Legislature as embodied in the statute: “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.”
The policy of the state is that records should be open. Governmental bodies shouldn’t be looking for excuses to avoid complying with the law, as has the City of Wichita and this agency, and has two other similar agencies. Especially when the reasons the city legal staff has used are wrong, both in terms of the letter of the law and its intent.
Now I realize that Mr. Gary Rebenstorf, the Wichita City Attorney, disagrees with my contention that this agency is in fact a public agency as defined by the Kansas Open Records Act. Mr. Rebenstorf has been wrong several times before when issuing guidance to this council regarding the Kansas Open Meetings Act, which is similar to the Open Records Act. He’s taken the blame and apologized for these violations. He was quoted in the Wichita Eagle as saying “I will make every effort to further a culture of openness and ensure that like mistakes are avoided in the future.”
But with regard to my records requests, he’s advised this council to keep records closed when the law and the public policy of this state says they should be open.
He, or perhaps whoever is instructing him as to what opinions to write, is hostile towards towards open records and citizens’ right to know.
Mayor, you’ve spoken about “building public trust in government” and working to achieve greater transparency. Manager Layton has as a goal “Promoting transparency by providing timely, accurate and relevant information.”
This is a chance for the political leadership of this city to make a decision: does the city promote transparency by deciding itself what information to release, or does it agree to citizen-driven accountability, where citizens are in charge?
As a condition of renewing the city’s contract with the Go Wichita Convention and Visitors Bureau, I ask that this council instruct the Bureau to follow the Kansas Open Records Act.
At Tuesday’s meeting Wichita City Council, the city may take action that appears to advance the goal of making more information about government available to citizens. The proposed action, however, simply acknowledges intent to comply with one provision of the Kansas Open Records Act (KORA). The city still avoids full compliance with this law.
The issue at hand is renewal of the city’s contract with the Wichita Downtown Development Corporation. This agency, while structured as a non-profit corporation, is in effect a branch of Wichita city government. Its sole source of funds is property tax, except for some private fund-raising done last year for a specific purpose.
It’s important that citizens and journalists have complete access to all records that are considered open under the Kansas Open Records Act. An example of why this is important is the case of Mike Howerter, a trustee of Labette Community College in Parsons.
While the college president committed no crime by making this political contribution using college funds, this is an example of the type of information that citizens may want regarding the way public funds are spent.
The action the City of Wichita may take on Tuesday proposes that the WDDC make available a report that will not give citizens and journalists the information they need to do what Howerter did at Labette Community College. But the city will undoubtedly use this report to claim that it and the WDDC are in full compliance with the Kansas Open Records Act, thereby deflecting further records requests and scrutiny.
It’s a smokescreen, in other words.
Last fall I asked the WDDC and two other agencies with similar finances and relationships to the city for their check registers and employment contract for their chief executive. All three declined to comply with my request. Their reason was not that their check registers are not considered to be records that are open, but that the agencies are not public agencies as defined in the Kansas Open Records Act. See Wichita Downtown Development Corporation and City of Wichita refuse to follow Kansas Open Records Act for details.
I have asked the Sedgwick County District Attorney to investigate the refusal of these agencies to comply with what I believe the Kansas Open Records Act says they must do. That office is still working on this case.
At Tuesday’s city council meeting, I will ask that the city include language in the contract acknowledging that the WDDC is a public agency as defined in the Kansas Open Records Act.
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The language in the agenda report for Tuesday’s meeting is: “The WDDC contract amendment also provides the procedure for the WDDC to comply with new Kansas Open Records Act reporting requirements for not-for-profit entities receiving public funds.”
The language in the proposed ordinance relating to the open records act is as follows: “3. KORA. Annually, on or before June 1, the Corporation will file with the City a written financial report for the preceding calendar year, detailing the receipt of public funds and the expenditure of such funds, in a form and format as the City and Corporation may reasonably agree and in the absence of a specified form, in the same format as the SSMID budget. It is the intention of the parties that this filing shall serve to make such report an open public record and to fill the requirements of K.S.A. 40-240.”
I believe the statute number referred to in this proposed ordinance is a mistake, as K.S.A. 40-240 concerns insurance law. Instead, K.S.A. 45-240 is titled “Recordkeeping requirements for certain not-for-profit entities” and is, I believe, the correct statutory reference.
Recently I asked three quasi-governmental organizations in Wichita for some records. They declined, stating that they are not subject to the records act. They believe that because their form of organization is non-profit — several different forms of 501c status — they do not have to follow the KORA.
These organizations receive all or nearly all of their funds from taxes. The open records act defines a public agency as, in part, “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.”
These organizations may be relying on faulty advice by the Wichita city attorney, who says that at least one of these organizations falls under the vendor exception to the KORA. That exception is there so that if, say, a car dealer sells a car to a city, the dealer isn’t subject to the KORA for that reason alone.
But these organizations, generally, have only one client: government. They are performing a governmental function that some cities keep in-house instead of outsourcing as Wichita has. So this vendor exception should not apply in these cases.
The Kansas Open Records Act contains language stating that the act should be construed liberally. Governments should be looking for ways to make more information available, not going out of the way to restrict access, as does the City of Wichita.
I don’t know what would be the cure for this situation. I’ve asked the district attorney to look into these cases.
Furthermore, I would like to call your attention to the Sedgwick County legislative platform, especially the provisions regarding the limitation of the use of eminent domain for economic development purposes and the requirement for sales and property tax increases to be put to a vote of the people. As you may be aware, Sedgwick County did not budget funds for a lobbyist this year, so we’re going to be counting on Sedgwick County legislators to press these initiatives.
During today’s meeting of the Sedgwick County Commission, commissioners awarded funds to an organization without requiring accountability and transparency.
At issue was the county awarding $50,000 to Visioneering Wichita. My testimony opposing this funding is at Visioneering Wichita should not receive public funds. In my testimony, I asked that if the commissioners decided to approve the funding, that compliance with the Kansas Open Records Act be a condition of the funding. Specifically, I asked that Visioneering Wichita would agree in writing that it is a public agency as defined in the KORA.
Commissioner Karl Peterjohn made an amendment to the funding motion that did what I recommended. It died for lack of a second.
To my knowledge, no one has made a records request to Visioneering Wichita. I don’t know if anyone has plans to, and I don’t know what Visioneering Wichita’s response would be to a request. But several quasi-governmental organizations in Wichita — including one in a similar situation to Visioneering Wichita as far as parentage — have refused to comply with my records requests on the basis that they are not “public agencies” as defined in the KORA. This is despite the law’s clear language, and despite the fact that these organizations are wholly or nearly wholly funded by tax revenues.
In his presentation, Visioneering Wichita volunteer chairman Jon Rolph said his organization has been “very open and transparent.” But in questioning by Peterjohn, Rolph did not know the total budget of Visioneering, nor was he sure of its exact form of business organization, despite my same question having been submitted to Rolph several days ago.
When asked by Peterjohn if he considered Visioneering Wichita to be covered under the Kansas Open Records Act, Rolph said that Visioneering would probably fall under the category of public-private partnerships like the Greater Wichita Economic Development Coalition (GWEDC). (GWEDC recently refused to comply with a records request filed by me, although it is largely or entirely funded by taxes.) “But we want to be open, we have nothing to hide,” he said. But he said he’d have to check to see if the organization felt it was subject to the KORA.
At a meeting of the Wichita City Council, it becomes clear that either the city doesn’t understand the meaning of the Kansas Open Records Act, or it has no intention of following it.
