Voice For Liberty

Tag: Kansas Open Records Act

  • Open Records in Kansas

    Open Records in Kansas

    business-records-file-foldersKansas has a weak open records law. Wichita doesn’t want to follow the law, as weak as it is.

    As citizen watchdogs, I and others need access to information and data. The City of Wichita, however, has created several not-for-profit organizations that are largely funded by tax money. The three I am concerned with are the Wichita Downtown Development Corporation, Go Wichita Convention and Visitors Bureau, and Greater Wichita Economic Development Coalition.

    I have asked each organization for checkbook-level spending data. Each has refused to comply, using the reasoning that they are not “public agencies” as defined in the Kansas Open Records Act. But consider the WDDC: When I made a request for records, its percent of revenue derived from taxes was well over 90 percent every year but one. In many years the only income WDDC received was from taxes and a small amount of interest earned. Click here to see how much of WDDC’s revenue comes from taxes.

    The Wichita city attorney backs these organizations and their interpretation of the law. So do almost all city council members. After 14 months investigating this matter, the Sedgwick County District Attorney agreed with the city’s position. (Click here to read the determination.) The only course of action open to me is to raise thousands of dollars to fund a lawsuit.

    Citizen watchdogs and others need the ability to examine the spending of tax money. When government creates quasi-governmental bodies that are almost totally funded through taxes, and then refuses to disclose how that money is spent, we have to wonder why the city doesn’t want citizens to know how this money is spent.

    An example of why this is important is the case of Mike Howerter, a trustee of Labette Community College in Parsons. He noticed that a check number was missing from a register. Upon his inquiry, it was revealed that the missing check was used to reimburse the college president for a political campaign contribution. While the college president committed no violation 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.

    In Wichita, because of a loophole in the Kansas Open Records Act, a large amount of tax money is spent without this type of scrutiny. This year the Kansas Legislature is considering HB 2567, which will start to bring accountability for how all tax money is spent..

    The Attorney General’s page on the Kansas Open Records Act is here. The Kansas Legislator Briefing Book chapter for the Kansas Open Records Act is here.

    Wichita doesn’t value open records and open government

    On the KAKE Television public affairs program “This Week in Kansas” the failure of the Wichita City Council, especially council member Wichita City Council Member Pete Meitzner (district 2, east Wichita), to recognize the value of open records and open government is discussed.

    For more background, see Wichita, again, fails at open government.

    Wichita, again, fails at open government

    The Wichita City Council, when presented with an opportunity to increase the ability of citizens to observe the workings of the government they pay for, decided against the cause of open government, preferring to keep the spending of taxpayer money a secret. Continue reading here.

    Wichita could do better regarding open government, if it wants

    Tomorrow the Wichita City Council will consider renewing its contract with Go Wichita Convention and Visitors Bureau. The renewal will provide another opportunity for the council to decide whether it is truly in favor of open government and citizen access to records. Continue reading here.

    Wichita government’s attitude towards citizens’ right to know is an issue

    At a meeting of the Wichita City Council, Kansas Policy Institute president Dave Trabert explained the problems in obtaining compliance with the Kansas Open Records Act. Continue reading here.

    Open records again an issue in Kansas

    Responses to records requests made by Kansas Policy Institute are bringing attention to shortcomings in the Kansas Open Records Act. Continue reading here.

    In Wichita, disdain for open records and government transparency

    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. Continue reading here.

    Additional information on open records is at:

  • WichitaLiberty.TV January 19, 2014

    In this episode of WichitaLiberty.TV: How much would you pay to visit the Wichita Art Museum? You might be surprised to learn how much each visit really costs. Then: A transparency agenda for Wichita city government and the Kansas Legislature. Finally, a look at public schools wasting money. Episode 28, broadcast January 19, 2014. View below, or click here to view at YouTube.

  • Visit Wichita, and pay a tourism fee

    welcome-wichita-01The Wichita City Council will consider adding a 2.75 percent tax to hotel bills, calling it a “City Tourism Fee.” Welcome to Wichita!

    This week the Wichita City Council will consider advancing the formation of a Tourism Business Improvement District (TBID).

    The main characteristic of the proposed TBID is that it will add 2.75 percent fee to most hotel rooms sold in the City of Wichita. The funds would go to Go Wichita Convention and Visitors Bureau to be used to enhance Go Wichita’s market efforts. The cost of the effort is estimated at $2.5 million per year. The item the city council will consider Tuesday will set a date for a public hearing, if the council agrees to proceed.

    What is the motivation of the city’s hotel operators to assent to this added tax on their product? City documents state: “Go Wichita estimates that the new marketing investment could result in a 6% rise in hotel occupancy and a growth of $12 million in hotel revenue.”

    A few remarks:

    First: If it’s true that increased marketing of Wichita’s hotels will result in increased business, who is in the best position to undertake this effort? Hotel operators themselves, or the government bureaucrats that staff tourism bureaus?

    Second: The proposal indicates that hotels will collect this money via an item on the bill that will be called the “City Tourism Fee.” I wonder: Is there any way to distinguish this “fee” from a tax? Not only that, but a tax that will explicitly be passed along to visitors to Wichita?

    It would be one thing if the city required hotels to remit 2.75 percent of their revenue to the TBID. It’s another matter for the city to levy a fee for the privilege of staying in a hotel room in Wichita and list it on hotel bills. There’s nothing like saying “thank you” for visiting Wichita by adding 2.75 percent to your hotel costs.

    Coming to Wichita for business

    There will be quite a bit of tax on a Wichita hotel bill if the TBID is implemented. Start with 7.15 percent sales tax. Add six percent hotel guest tax. Now add 2.75 percent tourism fee. That’s 15.9 percent total tax. Except: If the hotel is one of several located in a Community Improvement Districts, guests may need to add an additional two percent, for a total of 17.9 percent in tax.

    But I forgot. Not all of that is tax. Some of it is a only a fee assessed for the privilege of visiting Wichita and staying in a hotel.

    Third: This will be more taxpayer funds that are spent in relative secrecy, because it is the position of Go Wichita and the city that the agency doesn’t have to conform to the Kansas Open Records Act.

    Go Wichita Convention and Visitors BureauFourth: Is there any way to characterize this as anything other than an expansion of bureaucracy in Wichita? I really wonder if the hotel operators know what they’re getting themselves mixed up in. If the hotels feel they need more marketing firepower to attract business to Wichita, I’m sure they’d do better to form a voluntary association to undertake this task. This would be nimble and flexible in way that a government bureaucracy can never be. But who will stand up to this expansion of our tourism bureaucracy? A hotel owner who wishes to receive referrals? Like most government bureaucrats, those who will run this new program “profit” from increasing their power and influence, and by expansion of their budgets, perks, and staffs. They won’t look favorably on those who don’t go along with the program.

    Finally, the people of Wichita need to realize that pursuit of convention and tourism business is not a wise path to economic development and prosperity. Wall Street Journal reporting from last year concluded with:

    “Mr. Sanders, the University of Texas professor, predicts the glut of convention space will only get worse, because a number of cities continue to push expansions. He blames cities’ hired consultants, who he said predict “all these people are going to come and do wonderful things to your economy.”

    “But the problem is they aren’t coming anymore, because there are lots of other convention centers … that desperately want that business,” he said. “So Atlanta steals from Boston, Orlando steals from Chicago and Las Vegas steals from everywhere.”

    The “Mr. Sanders” referred to in the Journal reporting is Heywood T. Sanders, who is professor in the Department of Public Administration at the University of Texas at San Antonio. He is a noted critic of public efforts to chase convention business for economic development. His 2005 report report Space Available: The Realities of Convention Centers as Economic Development Strategy was published by the left-leaning think tank The Brookings Institution. It provides a look at the realities of the convention trade.

    Sanders writes that convention center business has been on the decline, and it started well before the terrorist attacks in 2001. In a section titled “Trends: Portrait of a Faltering Industry” we can read that attendance is down, exhibit space demand is down, and hotel room demand in cities has fallen too.

    The author notes that the decline in convention business is a structural decline: “[Reasons for decline] are the product of industry consolidation, particularly in the hardware and home improvement industry, reductions in business travel in the face of increasing cost and difficulty, and alternative means of conveying and gathering information.” These are not cyclical trends that are likely to reverse in the future.

    Despite shrinking demand, cities are building more convention space: “Despite diminishing demand, the last few years have seen a remarkable boom in the volume of exhibit space in U. S. convention centers.” The building of larger convention centers in many cities means that more cities are able to host the larger events, or, cities can now host several smaller events simultaneously. The result, says the author, is fierce competition for both large and small events.

    What about the costs? The author introduces a section on costs with: “The studies that justify both the new center space and the publicly-owned hotels paint a picture of tens of thousands of new out-of-town visitors and millions of dollars in economic impact. Despite that rhetoric, these projects carry real risks and larger potential costs, particularly in an uncertain and highly competitive environment.”

    The convention center is just the start of costs: “A new [convention] center is thus often followed by a subsidized or fully publicly-owned hotel.” Wichita, of course, has a fully publicly-owned hotel, the large 303-room Hyatt. Now Wichita has been providing, and will probably continue, subsidy programs to other downtown hotels. None of the hotels alone provide as many rooms as Wichita convention planners say the city needs, so we are likely to see proposals for a subsidies to hotels continue.

    In fact, until Wichita has as many hotel rooms as our nation’s largest convention cities have, there is always a larger goal — a next step on the ladder. Can you imagine our city leaders ever proclaiming that we have enough hotel rooms in downtown Wichita?

    Other things Sanders says that are likely to be proposed are a sports arena. Wichita, of course, recently opened a taxpayer-financed and government-owned facility, the Intrust Bank Arena. After a brief honeymoon fling with good financial performance, the arena has settled down to a less-acceptable level of revenue production. Residents of Sedgwick County, which owns the arena, should be cautioned that the financial results hailed by the county don’t include depreciation costs, so the true financial picture is not anywhere near complete.

    Entertainment, retail, and cultural attractions are often proposed, Sanders writes, and Wichita downtown planners have indicated their desire for these.

    The conclusion to this paper describes Wichita’s current situation and foreshadows what is likely for the future of Wichita:

    But if taxing, spending, and building have been successful, the performance and results of that investment have been decidedly less so. Existing convention centers have seen their business evaporate, while new centers and expansions are delivering remarkably little in terms of attendance and activity.

    What is even more striking, in city after city, is that the new private investment and development that these centers were supposed to spur — and the associated thousands of new visitors — has simply not occurred. Rather, city and convention bureau officials now argue that cities need more space, and more convenience, to lure those promised conventions. And so underperforming convention centers now must be redeemed by public investment and ownership of big new hotels. When those hotels fail to deliver the promises, then the excuse is that more attractions, or more retail shops, or even more convention center space will be needed to achieve the goal of thousands of new visitors.

  • A transparency agenda for Wichita

    Wichita City HallKansas has a weak open records law, and Wichita doesn’t want to follow the law, as weak as it is. But with a simple change of attitude towards open government and citizens’ right to know, Wichita could live up to the goals its leaders have set.

    The City of Wichita is proud to be an open and transparent governmental agency, its officials say. Wichita Mayor Carl Brewer often speaks in favor of government transparency. For example, in his State of the City address for 2011, he listed as an important goal for the city this: “And we must provide transparency in all that we do.” When the city received an award for transparency in 2013, a city news release quoted Wichita City Manager Robert Layton:

    “The City Council has stressed the importance of transparency for this organization,” City Manager Robert Layton said. “We’re honored to receive a Sunny Award and we will continue to empower and engage citizens by providing information necessary to keep them informed on the actions their government is taking on their behalf.”

    Wichita logic open records
    But when we look at some specific areas of government transparency, we find that the city’s efforts are deficient. Below are a few areas in which the city could improve. Much more is available here: Open government in Kansas

    The Kansas Open Records Act (KORA), in KSA 45-216 (a) states: “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.

    In reality, Kansas has a weak open records law. Wichita doesn’t want to follow the law, as weak as it is. But with a simple change of attitude towards open government and citizens’ right to know, Wichita could live up to the goals its leaders have set.

    Attitude

    Citizen watchdogs need access to records and data. The City of Wichita, however, has created several not-for-profit organizations that are controlled by the city and largely funded by tax money. The three I am concerned with are the Wichita Downtown Development Corporation, Go Wichita Convention and Visitors Bureau, and Greater Wichita Economic Development Coalition.

    I have asked each organization for checkbook-level spending data. Each has refused to comply, using the reasoning that they are not “public agencies” as defined in the Kansas Open Records Act. But consider the WDDC: In every year but one, its percent of revenue derived from taxes is well over 90 percent. In many years the only income WDDC received was from taxes and a small amount of interest earned. Click here to see how much of WDDC’s revenue comes from taxes.

    The Wichita city attorney backs these organizations and their interpretation of the law. So do almost all city council members. After 14 months investigating this matter, the Sedgwick County District Attorney agreed with the city’s position. (Click here to read the determination.) The only course of action open to me as a citizen watchdog is to raise thousands of dollars to fund a lawsuit.

    There is one other course of action, however. That is, these agencies and the city could fulfill the records requests that I have made. These agencies believe the law doesn’t require them to release the records, but the law does not prohibit or restrict releasing the records. They could fulfill requests if they wanted to, which goes back to the attitude of the city. For more, see Wichita, again, fails at open government.

    Citizen watchdogs and others need the ability to examine the spending of tax money. When government creates quasi-governmental bodies that are almost totally funded through taxes and then refuses to disclose how that money is spent, we have to wonder why the city doesn’t want citizens to know how this money is spent.

    An example of why this is important is the case of Mike Howerter, a trustee of Labette Community College in Parsons. He noticed that a check number was missing from a register. Upon his inquiry, it was revealed that the missing check was used to reimburse the college president for a political campaign contribution. While the college president committed no violation 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.

    Website

    The most important way governments can communicate with their subjects is through their websites. Wichita moved to a new website early in 2013. While the former website had its share of problems — such as a search feature that didn’t work very well — the new website has been a step backwards.

    For example, it appears that for citizen review boards like the Metropolitan Area Planning Commission and Historic Preservation Board, agendas and minutes prior to 2012 did not survive the conversion to the new website. Other documents that were previously available but appear to be missing after the conversion include the daily arrest reports. It appears that only a few years of past budgets are available, but the comprehensive annual financial reports are available for about ten years back. (If I missed any documents that are actually available, I apologize. But the fact that I couldn’t find them is its own problem.)

    The prior website had a service called “MyWichita.” This was a very useful service. After registration, citizens could see a list of documents and check the types of documents for which they’d like to receive notification when newly available, such as meeting agenda and minutes. This email reminder service was very valuable. It didn’t survive the conversion to the new website, and there’s nothing new to replace its function.

    The search feature on the new website is better than on the old. But there is a curious twist to the new search: It gives different results depending on the starting page. This could be a potentially useful feature if users were made aware of it. For example, if the user is currently viewing the Finance Department web page and starts a search, the system could give the user a choice of search just the Finance Department, or all of the website. Presently, it appears that the search would be confined to just the Finance Department, and users could easily conclude that documents they searched for don’t exist, when in fact they do.

    Most new websites in recent years will adapt so they are usable from mobile devices like smartphones. Not so with the new Wichita website.

    Spending data

    Many governmental agencies post their checkbooks on their websites. Sedgwick County does, and also the Wichita school district. Not so the City of Wichita.

    wichita-checkbook-register-example
    Even after asking for checkbook spending data, Wichita can supply data of only limited utility. What was supplied to me was data in pdf form, and as images, not text. It would be difficult and beyond the capability of most citizens to translate the data to useful format. Even if someone translated the reports to computer-readable format, I don’t think it would be very useful. This is a serious defect in the city’s transparency efforts.

    Legal notices

    Kansas law requires that local government agencies publish legal notices for a variety of topics. Presently these are published in the Wichita Eagle at great cost to taxpayers. These notices could also be published on the city’s website, where they could be searched and archived. This would increase the usability of these documents at very little cost to the city.

    Publish requests

    When governmental agencies like the City of Wichita fulfill records requests, they could also publish the records on their websites. Most of the time the records are supplied electronically, so this is an additional simple (and low cost) step that would leverage the value of the city’s effort.

    Leveraging our lobbyists

    What do lobbyists, including taxpayer-funded lobbyists, do in Topeka? One thing they do is testify before committees, in both verbal and written form. Another thing they do is to prepare reports for the clients, advising them on upcoming legislation, analyzing how it affects them, and what the prospects for the bill might be. They also meet with legislators and their clients, which are your elected officials.

    Here’s a proposal that will help citizens make best use of their taxpayer-funded lobbyists:

    I see nothing in the Kansas Open Records Act that allows local governmental units in Kansas to refuse to disclose these documents: testimony, reports by lobbyists to their government clients, and the lobbyists’ calendars (or billing records for contract lobbyists). Instead of making citizens ask for these records, possibly paying fees to obtain what they’re already paying for, why don’t local governments post these documents immediately on their websites?

    Citizens could then benefit from the activities of the lobbyists they’re paying for. They could learn more about legislation as it works its way through the process. Citizens could judge whether the positions taken by the government lobbyists they’re paying for are aligned with their policy preferences.

    If the actions taken by taxpayer-funded lobbyists are truly in the public interest, you’d think that cities, counties, and school boards would already be making this information easily available. In any case, there should be no resistance to starting this program.

  • Wichita’s legislative agenda favors government, not citizens

    Wichita’s legislative agenda favors government, not citizens

    city-council-chambers-sign-smallThis week the Wichita City Council will consider its legislative agenda. This document contains many items that are contrary to economic freedom, capitalism, limited government, and individual liberty. Yet, Wichitans pay taxes to have someone in Topeka promote this agenda. I’ve excerpted the document here, and following are some of the most problematic items.

    Agenda: Existing economic development tools are essential for the continued growth and prosperity of our community.

    First. The premise of this item is incorrect. We don’t have growth and prosperity in Wichita. Compared to a broad group of peer metropolitan areas, Wichita performs very poorly. See For Wichita’s economic development machinery, failure for details.

    Second: In general, these incentives don’t work to increase prosperity. Click here for a summary of the peer-reviewed academic research that examines the local impact of targeted tax incentives from an empirical point of view. “Peer-reviewed” means these studies were stripped of identification of authorship and then subjected to critique by other economists, and were able to pass that review.

    Third: Wichita leaders often complain that Wichita doesn’t have enough “tools in the toolbox” to compete effectively in economic development. The city’s document lists the tools the city wants the legislature to protect:

    • GWEDC/GO WICHITA: Support existing statutory records exemptions
    • Industrial Revenue Bond tax abatements (IRBX)
    • Economic Development Exemptions (EDX)
    • Tax Increment Financing (TIF)
    • Sales Tax Revenue (STAR) Bonds
    • Community Improvement Districts (CID)
    • Neighborhood Revitalization Area (NRA) tax rebates
    • Special Assessment financing for neighborhood infrastructure projects, facade improvements and abatement of asbestos and lead-based paint.
    • State Historic Preservation Tax Credits (HPTC)
    • State administration of federal Low Income Housing Tax Credits (LIHTC)
    • High Performance Incentive Program (HPIP) tax credits
    • Investments in Major Projects and Comprehensive Training (IMPACT) grants
    • Promoting Employment Across Kansas (PEAK) program
    • Economic Revitalization and Reinvestment Act bonding for major aviation and wind energy projects
    • Kansas Industrial Training (KIT) and Kansas Industrial Retraining (KIR) grants
    • Network Kansas tax credit funding
    • State support for Innovation Commercialization Centers in Commerce Department budget

    That’s quite a list of incentive programs. Some of these are so valuable that Kansas business leaders told the governor that they value these incentives more than they would value elimination of the state corporate income tax.

    Agenda: GWEDC/GO WICHITA: Support existing statutory records exemptions

    This may refer to the city wanting to prevent these agencies from having to fulfill records requests under the Kansas Open Records Act. (If so, I wonder why the Wichita Downtown Development Corporation was left off.) City leaders say Wichita has an open and transparent government. But Kansas has a weak records law, and Wichita doesn’t want to follow the law, as weak as it is. This is an insult to citizens who are not able to access how their taxes are spent. For more on this issue, see Open Records in Kansas.

    Agenda: The Wichita City Council opposes any legislative attempts to restrict the taxing and spending authority of local governments.

    As Wichita city leaders prepare to ask for a higher sales tax rate in Wichita, we can hope that the legislature will save us from ourselves. At best, we can hope that the legislature requires that all tax rate increases be put to popular vote.

    Agenda: The Wichita City Council opposes any restrictions on the use of state and/or local public monies to provide information to our citizens and to advocate on their behalf.

    This is the taxpayer-funded lobbying issue. As you can see in this document, many of the things that Wichita city leaders believe people want, or believe that will be good for their constituents, are actually harmful. Additionally, many of the methods the city uses to engage citizens to determine their needs are faulty. See In Wichita, there’s no option for dissent for an example. Also, see Wichita survey questions based on false premises.

    Agenda: The Wichita City Council supports the current framework for local elections, continuing the current February/April schedule of local primary and general elections, as well as the local option allowing non-partisan elections.

    The present system of non-partisan elections held in the spring results in low voter turnout that lets special interest groups exercise greater influence than would be likely in fall elections. See my legislative testimony in Kansas spring elections should be moved.

    Agenda: The Wichita City Council supports the development of appropriate state and local incentives to nurture and preserve arts activity throughout the City of Wichita and the State of Kansas.

    Translation: The city knows better than you how to provide for your entertainment and cultural edification, and will continue to tax you for your own benefit.

    Agenda: Public support and awareness of the possibility of passenger rail service connecting Oklahoma City and Wichita/Newton has grown over the past two years.

    I’m not sure where the claim of public support and awareness growing comes from, but people are definitely not informed about the economics of passenger rail. In 2010, when the state rolled out several plans for this passenger rail service link, I reported as follows:

    Expansion of rail service in Kansas is controversial, at least to some people, in that any form of rail service requires taxpayer involvement to pay for the service. First, taxpayer funding is required to pay for the start-up costs for the service. There are four alternatives being presented for rail service expansion in Kansas, and the start-up costs range from $156 million up to $479 million.

    After this, taxpayer subsidies will be required every year to pay for the ongoing operational costs of providing passenger rail service. The four alternatives would require an annual operating subsidy ranging from $2.1 million up to $6.1 million. Taking the operating subsidy and dividing by the estimated number of passengers for each alternative, the per-passenger subsidy ranges from $35 up to $97 for every passenger who uses the service.

    It would be one thing if tickets sales and other revenue sources such as sale of food and beverage paid for most of the cost of providing passenger rail service, and taxpayers were being asked to provide a little boost to get the service started and keep it running until it can sustain itself. But that’s not the case. Taxpayers are being asked to fully fund the start-up costs. Then, they’re expected to pay the majority of ongoing expenses, apparently forever.

    Also, in Amtrak, taxpayer burden, should not be expanded in Kansas I reported on the Heartland Flyer route specifically. This is from 2010, but I doubt much has changed since then.

    For the Heartland Flyer route, which runs from Fort Worth to Oklahoma, and is proposed by taxpayer-funded rail supporters to extend into Kansas through Wichita and Kansas City, we find these statistics about the finances of this operation:

    Amtrak reports a profit/loss per passenger mile on this route of $-.02, meaning that each passenger, per mile traveled, resulted in a loss of two cents. Taxpayers pay for that.

    But this number, as bad as it is, is totally misleading. Subsidyscope calculated a different number. This number, unlike the numbers Amrak publishes, includes depreciation, ancillary businesses and overhead costs — the types of costs that private sector businesses bear and report. When these costs are included, the Heartland Flyer route results in a loss of 13 cents per passenger mile, or a loss of $26.76 per passenger for the trip from Fort Worth to Oklahoma City.

    Asking the taxpayers of Wichita to pay subsidies each time someone boards an Amtrak train: This doesn’t sound like economic development, much less a program that people living in a free society should be forced to fund.

  • Wichita can advocate for government transparency, or not

    Wichita City HallGovernment should be responsive to citizens when they make legitimate requests for records. Wichita should not hide behind non-profit entities and tortured interpretations of the law in order to keep records secret.

    When the Wichita City Council considers renewing its contract with Go Wichita Convention and Visitors Bureau, the council has another opportunity to decide whether it is truly in favor of open government and citizen access to records.

    Go Wichita, along with the Wichita Downtown Development Corporation and Greater Wichita Economic Development Coalition, contends that it is not a “public agency” as defined in Kansas law, and therefore does not have to fulfill records requests. Mayor Carl Brewer and most council members are comfortable with this tortured interpretation of the law. Inexplicably, the Sedgwick County District Attorney agreed with the city.

    I, along with many others, believe the city’s interpretation of the law is incorrect. So do many in the Kansas Legislature, and action may be taken there to eliminate the ability of Wichita to keep public records from the public. We can call it Gary’s Law, after Wichita City Attorney Gary Rebenstorf, who provides the legal advice the city relies upon.

    The legal stance of the City of Wichita certainly isn’t good public policy. Citizens should be able to learn how taxpayer money is spent. Agencies like Go Wichita, WDDC, and GWEDC need to open their check registers as has Sedgwick County, for example.

    In the meantime, there is nothing to prevent the city from asking Go Wichita to act as though it was a public agency as defined in the Kansas Open Records Act and to fulfill records requests. This would let Wichitans know that the city is truly interested in open and transparent government.

    It’s easy to bluster about open government. In one of his “State of the City” addresses, Mayor 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.

    Earlier this year, the city won an award for government transparency regarding the city’s website. In a statement, the city manager said the city “will continue to empower and engage citizens by providing information necessary to keep them informed on the actions their government is taking on their behalf.”

    Until the city asks that these quasi-governmental organizations subject themselves to the Kansas Open Records Act, the message from the City of Wichita is clear: Accountability and transparency is provided on the city’s terms, not on citizens’ terms and the law.

    Why open records are important

    labette-community-college-donationHere’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.

    This item in the past

    Two years ago I asked that the city council approve the contract with Go Wichita only after adding a provision that Go Wichita consider itself a public agency under the Kansas Open Records Act. Following are 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.

    Misunderstanding the scope of KORA

    In remarks from the bench Wichita City Council Member James Clendenin (district 3, southeast and south 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?

    Wichita City 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 one request this year to the city citing the open records act. It was denied. 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 typical of elected officials — disdain for providing records to citizens. Government should be responsive to citizens. As Randy Brown told the council, government should welcome opportunities to share information and be open and transparent. The city should not hide behind non-profit entities and torture the law in order to keep records secret.

    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 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 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. That is costly, and citizens soon realize their own taxpayer dollars are used against them.

    Wichita logic open records

  • Kansas Open Records Act needs improvement

    File folder and documents

    Testimony to Senate Standing Committee on Federal and State Affairs as proponent of SB 10: Open meetings; minutes required; open records; charges limited, by Bob Weeks, March 13, 2013.

    Chairman Ostmeyer and members of the Committee:

    Thank you for this opportunity to present testimony on problems with the Kansas Open Records Act regarding high fees for the production of records. In 2008 I personally encountered this problem, as reported in the Wichita Eagle:

    Open Records Requests Can Spell High Fees (Wichita Eagle, March 9, 2008)

    Want information from the governor’s office? Get ready to pay up. That’s what Wichita blogger Bob Weeks says he discovered when he requested four days’ worth of e-mails sent and received by Gov. Kathleen Sebelius and her staff.

    To get the records, he was told he’d have to pay a lawyer in the governor’s office $27 an hour, for 50 hours, to read the e-mails to make sure they aren’t exempt from disclosure. That and 25 cents a page for copies or an unspecified extra charge to get the e-mails in electronic form. “Please make your check for the amount of $1,350 payable to the state of Kansas and reference your open records request,” said a letter Weeks received from JaLynn Copp, assistant general counsel to the governor.

    State Sen. Timothy Huelskamp, R-Fowler, said he was aware of Weeks’ case. He said he thinks the fees are excessive. “It doesn’t mean much for it to be an open record if you can’t afford it,” he said. In addition, he said a sluggish response to the request from the governor’s office appears to have violated the state Open Records Act. Huelskamp said the law requires state agencies to fulfill records requests within three business days or provide a detailed reason why that can’t be done. Weeks mailed his request on Feb. 7 and got an initial response Feb. 13. His cost estimate didn’t come until Feb. 26, and neither letter explained the delay, Huelskamp said. “It’s really in violation of the letter and the spirit of the law and I’ve seen that happen more than once,” he said. (Full article available online at bit.ly/openrecordsks001)

    Based on this and other experience, it is difficult to obtain email records at reasonable cost. If one makes a very narrowly-defined request that is affordable, there is a chance that the request will not produce the desired documents. If the request is broad enough to catch the records one needs, it is likely to be very expensive.

    Kansas could use as a model the federal Freedom of Information Act (5 USC § 552), which provides for a limit on fees in certain cases: “Fees shall be limited to reasonable standard charges for document duplication when records are not sought for commercial use and the request is made by an educational or noncommercial scientific institution, whose purpose is scholarly or scientific research; or a representative of the news media.” (emphasis added)

    There are other problems with the Kansas Open Records Act. Enforcement is weak. In my case, the Sedgwick County District Attorney took 14 months to produce a ruling that I believe is contrary to the intent of this Legislature. As the Kansas attorney General refers all cases to the local District Attorney, I have no other avenue for enforcement except for a private lawsuit at my expense.

    Cities and other local governmental bodies have set up non-profit organizations to conduct business such as economic development. These agencies, as in the case of the Wichita Downtown Development Corporation, may receive up to 98 percent of their revenue from taxation, have only government as clients, and perform functions that are governmental in nature, yet they are judged not to be a public agency for purposes of the Kansas Open Records Act. This flies in the face of the Legislature’s declared intent in the preamble of the Act: “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.”

    While the Kansas Open Records Act requires agencies to respond to the request within three business days, a response might be “This will take more time.” At that point, as far as I know, there is nothing to prevent an agency from stalling indefinitely in fulfilling the records request.

    In some jurisdictions, if three or more records requests are received on the same topic, the agency must post the records. Kansas should go a step farther and require that governmental agencies post online all documents and records produced in response to records requests. In this way, the work done to fulfill requests could be leveraged and appreciated by a broader audience. An example of an agency doing this is Community Unit School District 300 in Illinois, at www.d300.org.

    Elected officials and bureaucrats often are either misinformed regarding the Open Records Act, or have a poor attitude towards open government. This Wichita school district, for example, has told me that my records requests are a “burden” that interferes with the education of children. A Wichita city council member argued that if the city manager was satisfied with the level of service that an agency provided, there was no need for the agency to produce records.

    The council member 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. He must not have been aware that 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.

    In 2007 the Better Government Association and National Freedom of Information Coalition gave Kansas a letter grade of “F” for its open records law. In 2011 State Integrity Investigation looked at the states, and Kansas did not rank well there, either.

    There is much that Kansas can, and should do, to strengthen its Open Records Law to give citizens and journalists better access to records and documents. Reigning in the ability of agencies to erect a protective wall of high fees is a first step.

    I have additional information about the Kansas Open Records Act and its problems at wichitaliberty.org/open-records.

    Respectfully submitted,
    Bob Weeks

  • Taxpayer-funded lobbying discussed

    Sedgwick County Working for You

    Taxpayer-funded lobbying was a subject of discussion at today’s meeting of the Sedgwick County Commission, with the commission passing by a vote of three to two a resolution expressing the commission’s opposition to a bill under consideration in the Kansas Legislature. Video is here or at the end of this article.

    The bill of interest is SB 109, described here. It states “No public funds may be used directly or indirectly for lobbying. No public funds may be used to pay membership dues to an association that is engaged in lobbying the state. Public funds shall not be used for the purpose of employing or contracting for the service of any person whose duty and responsibility includes lobbying.”

    But if we must have taxpayer-funded lobbying, let’s make the best of it. Communications to and from a local governmental body and its lobbyist are open to the public under the Kansas Open Records Act. The documents might be testimony the lobbyist will deliver, reports covering the status and impact of bills, and other matters.

    As these documents are open under the Kansas Open Records Act, I propose this: Instead of requiring citizens to ask for these records, possibly paying fees to obtain what they’re already paying for, why don’t local governments post these documents immediately on their websites?

    Citizens could then benefit from the activities of the lobbyists they’re paying for. They could learn more about legislation as it works its way through the process.

    Very importantly, citizens could judge whether the positions taken by the government lobbyists are aligned with their policy preferences.

    If the actions taken by taxpayer-funded lobbyists are truly in the public interest, you’d think that cities, counties, and school boards would already be making this information easily available. In any case, there should be no resistance to starting this program immediately. Today, as the legislature is currently in session.

    If any local governmental units feel that posting documents on a website is too much of a burden, here’s my offer: When your lobbyist sends you an email with testimony, legislative reports, or anything else, just forward the email to me (bob.weeks@gmail.com). I’ll take care of the rest.

    Here’s one such example: Kansas Legislative Session 2013 — Week 5: An update on the Kansas Legislature from Sedgwick County’s lobbyist.

  • Open records in Kansas

    Open Government

    Kansas has a weak open records law. Wichita doesn’t want to follow the law, as weak as it is. Legislation has been introduced to correct some of the problems with the Kansas Open Records Act.

    Here’s a portal of information on the problems I and others have had with the Kansas Open Records Act: Open records in Kansas.