Tag: Open records

  • Wichita City Council, September 15, 2009

    On today’s public agenda of the Wichita City Council, I have two things to discuss with the council. One is the city’s refusal to make public proposals submitted by planning firms wishing to be awarded a contract by the city. Background is here: Downtown Wichita proposals not available to citizens.

    Then, there’s Janet Miller’s junket to France, with background here: Janet Miller’s junket should be canceled.

    Mr. Mayor, members of the council:

    I’ve asked that the proposals from the four finalist firms for the downtown revitalization master plan be made available to the public. My request was denied.

    The part of the Kansas Open Records Act that the city cited does not prohibit release of the proposals. Instead, it states that the city is not “required to disclose” the proposals.

    So the city can share these with citizens if it wants to. And I think it should.

    According to the communication I received from the city, these proposals will not be made public until the city council accepts a proposal (or rejects them all).

    Since citizens won’t be able to read these proposals, they won’t be able to give any reasoned input on this matter. We don’t even know what questions to ask. I think this is intolerable. It’s offensive.

    There are a few citizens who can read these proposals: a select group of downtown boosters. The interests of these people — and of the various bureaucrats who also have these proposals — I would submit, are not representative of the city as a whole.

    Mr. Mayor, you can release these proposals if you want to. The citizens of Wichita would be better served if you do.

    Now, to the matter of Council Member Janet Miller’s travel to France. This trip can only be described as a junket, with all the negative connotations that go along with that word. To make it worse, the city is paying for a private citizen to make the trip, too.

    We’re in a tough budget time. Even in good times these trips should be avoided, but when budgets are stressed, travel should be the first thing to be cut.

    I realize the cost of this trip is small when compared to the total spending of the city. It’s less than $4,000, according to the estimates I’ve been given. But that’s still money that could be saved.

    Furthermore, these actions are symbolic. The city council asks citizens and employees to sacrifice, but in this case is not willing to set an example.

    There’s more travel to be approved on the agenda today, along with an item that hints of more to come later on. These items should not be approved.

    For Council Member Miller’s trip, I have these questions:

    What is the benefit of traveling to the International Cities Conference and the Sister Cities Festival?

    Why is the city paying for a private citizen, even though she is the Wichita Area Sister Cities President, to attend these events?

  • Downtown Wichita proposals not available to citizens

    As part of Wichita’s downtown revitalization effort, city leaders decided to hire a planning firm. Four firms have been selected as finalists, and a committee is in the process of evaluating their proposals.

    Whether or not you think this planning process is wise — and I happen to think it is not — it seems to be the will of the city and the special interest groups that will benefit from this type of central planning. So, it seems, we might as well make the best of it. This would include selecting a planning firm that seems most likely to respect property rights, specifically: (a) rejecting the use of eminent domain to seize property, (b) respecting existing zoning and land use rights, and (c) rejecting the use of TIF districts and other forms of public subsidy. These are the things that I learned are important from my trip to Anaheim’s Platinum Triangle, if a city wants to plan in a freedom-friendly way.

    On September 22 and 23, the planning firms will be making presentations to the public. I thought it would be great for citizens to be able to read the proposals so that they would be able to ask intelligent questions at these presentations. Unfortunately, the city won’t let citizens read these proposals, and citizens will not be permitted to ask questions at the presentations.

    The City of Wichita, according to Scott Knebel (Principal Planner, Advanced Plans Division, Wichita-Sedgwick County Metropolitan Area Planning Department), doesn’t consider the proposals to be open records under the Kansas Open Records Act. He wrote that in response to my informal request to view the proposal documents. I’ve now made a formal request to the city, and if the city denies access to the records, it will have to cite the provision in the Kansas Open Records Act on which it is relying.

    Earlier I said that citizens can’t read these proposals, but that’s not entirely true. If you’re a member of a select committee, you can have them. Government shouldn’t be allowed to pick and choose which select citizens are allowed to see how their tax dollars are to be used, and all citizens have a right to know if government intends to take their property.

    The fact that the city doesn’t want to let citizens — except those in a limited circle of downtown boosters — view these proposals and participate in the planning firm selection process is disturbing. It follows a pattern of stacking committees with people friendly to the desired goal, with no desire for dissent to be heard.

  • Kansas open records examined

    Here’s another outstanding investigative report by Paul Soutar of the Flint Hills Center for Public Policy. I have experienced some of the same obstacles that Soutar has encountered. Last year Wichita school district board member Lynn Rogers told me that record requests are a burden. Interim superintendent Martin Libhart’s attitude was similarly hostile towards legitimate citizen requests for records. Indications are that new board president Barb Fuller and new superintendent John Allison have a better attitude towards records requests, and I hope that time proves this to be the case.

    The spirit is willing but the law is weak

    Paul Soutar, Flint Hills Center for Public Policy

    Government transparency in Kansas is determined largely by open records and open meetings laws which state lofty goals but offer many loopholes and exemptions and few penalties for violations of the laws.

    The Kansas Open Records Act (KORA) starts off well. “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.”

    Similarly the Kansas Open Meetings Act (KOMA) begins, “In recognition of the fact that a representative government is dependent upon an informed electorate, it is declared to be the policy of this state that meetings for the conduct of governmental affairs and the transaction of governmental business be open to the public.”

    The legislation that follows these broad and lofty goals, however, is full of exemptions and loopholes that circumvent the stated intent. Ignorance of the law and poor compliance by various government bodies also limit its effectiveness according to government transparency advocates.

    A 2008 Better Government Association (BGA) report ranked Kansas’ open records law 18th in the nation. A 2007 study by BGA and the National Freedom of Information Coalition gave Kansas an F and ranked the state 25th out of 50. A 2002 study by BGA and Investigative Reporters and Editors gave Kansas a D.

    Citizens who believe KORA or KOMA law has been violated can file a complaint with the local county attorney, district court or the state’s attorney general. Michael Smith, a Kansas assistant attorney general responsible for issues relating to KORA and KOMA, says complaints about KORA and KOMA compliance are handled locally out of practicality. He says with more than 4,000 government units in Kansas his office would be stretched way too thin.

    Smith stressed the importance of government transparency and awareness of the law during KORA/KOMA training held in Dodge, Olathe, Topeka and Wichita in June. A total of 332 people attended the training. According to registration data received from Smith’s office, 255 were affiliated with government, 46 were with the media and only 14 said they were unaffiliated citizens; another 17 did not list any affiliation.

    From January 2007 to June 2008 there were 62 complaints filed at the county level according to reports submitted to the state attorney general’s office. The attorney general’s office received 78 complaints during that time, including some referred from the county.

    In most cases no violation was found. Some violations were resolved by delivery of the requested material. In a few cases the offending government employee or elected official was required to attend KORA or KOMA training. None of the violations covered by documents obtained from the attorney general’s office resulted in the $500 fine that is permitted by state law.

    There are some common issues leading to problems with KORA. Chief among them is ignorance of the law.

    The law allows an agency to require a written request but not on a specific form and only as a way to ensure good communication. The requester can only be required to provide their name and a description of the information being requested and provide proof of identification. It is not permitted to ask for the person’s employer or a reason for the request. Governments can require written certification that the requester will not use names and addresses obtained to solicit sales or services but only when someone is requesting names or addresses.

    Many times government employees or elected officials are unfamiliar with the law and their first reaction is to look for reasons to deny access or information. It can be complicated because there are 48 exemptions to KORA in the statute and more than 300 elsewhere in other Kansas laws according to Smith. Most exemptions deal with personal privacy issues and release of some personal information can result in a lawsuit against the government.

    During KORA/KOMA training Smith said record custodians must be familiar with records and know which portions of a record cannot be released. “If you’re a record custodian you better know if any of those records are closed.”

    Another common complaint is excessive charges for providing information. KORA allows agencies to charge requesters only for the actual cost of making copies, including staff time to gather, redact and copy the records.

    Smith says the only place the law addresses fee disputes is with state agencies. In those cases the department of administration has final and binding say. There’s nothing like that for local government, so disputes over fees at the local level must go to the local county or district attorney.

    Taxpayer Frustrations

    Paul Driver, CEO of ATG Sports in Andover, filed an open records request with the Wichita School District seeking information regarding an April 2009 synthetic turf contract awarded to a Texas company for $371,000 more than ATG’s bid. According to Driver the district said it would cost him $800 to fulfill his request. Driver offered to bring his own copier to cut costs. “At that point, the school district said we would need to bring our own power source to make the copies.” Eventually a deal was reached for Kansas Blue Print to make the copies for $350.

    The Flint Hills Center for Public Policy requested a copy of a budget report presented to the Wichita Board of Education for their fiscal year ended June 30, 2009. Flint Hills was informed that there would be a $50 charge for 2.5 hours of staff time to make an electronic copy of the report and that the money would have to be paid before work commenced.

    Upon delivery of the check, the report was burned to a CD in less than 15 minutes. Allowing $5 for the cost of the CD the employee’s time was effectively charged at $180 per hour. When asked to explain what work was actually done to warrant the charges the employee said he would not answer without a written request for review, which Flint Hills has filed.

    Material provided to Wichita Board of Education members at their public meetings is available on the district’s web site a few days preceding the meeting and is taken down the day of the meeting. Former board president Lynn Rogers said the short availability may be because of space considerations on district Internet servers. The district web site does contain marketing newsletters from 2006.

    When asked about the incidents involving Flint Hills and ATG Sports, Wichita School Superintendent John Allison said after less than one month in the job he was unfamiliar with the specific incidents or the district’s policy and how procedure is determined. “My intent would be to meet the requirements of the open records law and do that on a timely and equitable manner for everybody that requests.”

    Kansas State Board of Education member Walt Chappell used KORA to try to extract information from the Kansas State Department of Education about claimed achievement test improvement as a justification for more taxpayer money. Chappell also asked for information to explain a large discrepancy between state and national student achievement test scores.

    Chappell made the request to Kansas Commissioner of Education Dr. Alexa Posny in a letter dated June 9. He asked for, “any KSDE research report or independent contractor research report provided to the KSDE which supports your claims.”

    Chappell says responses to his request from KSDE and its lawyers did not provide what he was looking for and believes their response may indicate that no such report exists. KORA does stipulate that only existing documents are covered and agencies are not required to generate reports, explain or answer questions.

    It’s also noteworthy that an elected member of the state’s school board had to resort to an open records request to get answers from KSDE, part of the education system he was elected to help oversee.

    Sedgwick County Commissioner Gwen Welshimer says government should be open and everything possible made accessible at little cost to the public. But she’s concerned that the law doesn’t apply equally to all levels of government. “I think local government elected officers and appointees are treated in a different manner from some state officials.”

    Of particular concern is recent legislation prohibiting serial meetings. A serial meeting covers “… a series of interactive communications of less than a majority of a governing body that collectively involve a majority of the body and share a common topic concerning affairs of the body and are intended to reach an agreement.” Meetings in person, over the Internet, phone or via e-mail are included.

    Welshimer said some open meetings requirements, such as a prohibition on serial meetings, have a disproportionate effect on local government and has the opposite effect of what the law was intended to do. “Tight regulations on county commissioners make it extremely difficult to carry out policy and reach decisions.” She says most of that work is done behind closed doors by county managers who work up an issue and create the agenda before giving commission members a short briefing preceding the vote.

    “We can’t talk to each other so we can’t discuss anything. So I don’t know what the reasoning is for my colleague to vote one way or another,” Welshimer said in a recent phone interview. “Sometimes that’s a totally new subject and we haven’t been able to talk to each other to see what each other knows about it.”

    When asked about opportunities to ask questions in open meetings Welshimer said commissioners, like most elected officials, are reluctant to appear uninformed in public.

    State legislators can order research from the Legislative Research Department. That research is not open to the public unless released by the legislator.

    Welshimer, a former state representative, wants to know why state legislators aren’t held to the same standards as local elected officials. “The legislature has serial meetings constantly. They go along and count votes.” She says this allows legislators to research a topic, write a proposal, gather sufficient support for passage and spring it on the legislature. She says city and county managers have similar opportunities. “Every group in town can talk with the county or city manager about some item and then the manager can spring it on the commission. So where in this process do we have openness?”

    Welshimer says anything the legislature does should apply to them and believes the state’s open meeting law should be rewritten.

  • Open records in Kansas not always so

    Open records and meetings in Kansas are in the news.

    Today, the Wichita Eagle’s Brent Wistrom reports on training held by the Kansas Attorney General’s office. The story’s headline — Many Kansas officials fuzzy on open-government laws — gives one reporter’s opinion as to the recognition of open records law in Kansas.

    I attended the same training event in Wichita that Wistrom did.

    Separately, a column last week in the Topeka Capital-Journal (Group’s search for info shows open records act is weak) reports on the difficulty the Flint Hills Center for Public Policy had in their quest to obtain property appraisal data. Read Paul Soutar’s report at Kansas open records, not quite.

  • Sedgwick County transparency effort delayed

    This week Sedgwick County was scheduled to debut its financial transparency website. Based on the preview I briefly saw, this system will allow citizens to explore county revenue and spending in detail.

    Evidently, the system presents too much detail. The rollout was delayed due to an issue brought up by the Sheriff, having to do with names of undercover officers being exposed.

    That’s a legitimate concern. Records that would disclose the identity of an “undercover agent” is one of the exceptions identified in the Kansas Open Records Act.

  • Kansas open records law needs an overhaul

    This is the unedited version of an op-ed that appeared in today’s Wichita Eagle.

    Open Records Law Needs an Overhaul

    By Dave Trabert

    “An open and transparent government is essential to the democratic process. Under Kansas law, citizens have the right to access public records and observe many meetings where decisions are made that affect our state.”

    That quote is taken from the Kansas Attorney General’s web site. Unfortunately, the second sentence isn’t really true. Kansans may technically have the right to access some public records (those not protected by more than 300 exemptions the Legislature has granted), but too often we lack the ability because of government opposition.

    Our own ongoing struggle is a classic example of overt, and to some extent, coordinated, government efforts to deny taxpayers access to public information. On April 15, we e-mailed open records requests to county appraisers, asking for 2009 appraisal data and some historical information on residential appraisals. Initial replies ranged from full, speedy and courteous fulfillment of the request to no reply whatsoever, even though the Kansas Open Records Act (KORA) requires that government respond within three business days.

    In some cases, the reply was essentially, “go away.” Some said the 2009 data wouldn’t be released until it was certified to the County Clerk; even though there is no such exemption under KORA. Others said they wouldn’t release the data until we signed their Open Records form, some of which asked for information that KORA expressly prohibits.

    Others hid behind a provision that permits government to reject a request that causes them to “create” a record, meaning they don’t have to provide information unless it is maintained in the exact manner in which it is requested. Government shouldn’t have such broad latitude, but they do. One part of our request is covered by that exemption, but even after we arranged for their software vendors to supply a free update that would generate the requested information, some counties refuse to provide the information.

    Charging high costs to receive information is another way to discourage the public. KORA allows government to charge the actual cost of providing information, but some counties attempted to charge us more.

    There are other, even more egregious examples of government’s open attempts to discourage legitimate requests. The Shawnee County appraiser wrote a “Dear Colleagues” letter, encouraging others to seek the guidance of their legal counsel and informing them of his intention to deny portions of our request. Last week in front of a large gathering, the Sumner County appraiser screamed at me for “demanding” information and “threatening” (having the temerity to challenge their county counselor’s decision).

    Two months after our initial request we have complete information from only 67 counties. Formal complaints filed with county attorneys were largely ignored, so we have notified the remaining 38 counties that our next step will be to file suit to compel compliance. Unfortunately, that is the only recourse and one that many citizens lack the means to pursue.

    This travesty must end. The Legislature should completely rewrite KORA so that citizens’ rights to access public information are completely protected. No charges for information … limited exemptions … requirements to find ways to comply even if it means creating a record … and realistic enforcement provisions. After all, an open and transparent government is essential to the democratic process.

    Dave Trabert is President of the Kansas-based Flint Hills Center for Public Policy and he can be reached at dave.trabert@flinthills.org.

  • Sedgwick County keeps lease agreement secret

    A few months ago in March, SMG, the company that is managing the Intrust Bank Arena (formerly known as the downtown Wichita arena) signed a lease with the Wichita Thunder Hockey team.

    Details of that lease weren’t made available to the public. Not to Sedgwick County Commissioners, either. So the public and even elected government officials don’t know anything about this contract, except for its term of five years.

    This strikes me as bad government. The county has a deal with SMG that gives the management company broad latitude in operating the arena, including some profit-and-loss responsibility.

    The arena, however, is still taxpayer-owned property. Furthermore, reading the management contract between SMG and Sedgwick County, I can see several ways in which SMG can wrangle free of its obligations. Believe me, the taxpayer is still on the hook.

    So I believe we need to know the details of this lease made to the arena’s signature tenant. I made my case, based on my reading of the contract, in my post Wichita downtown arena contract seems to require Sedgwick County approval.

    An inquiry sent to Assistant Sedgwick County Manager Ron Holt, the county’s point man for the arena, produced a response (see below) that indicates that the county has no intention of disclosing the terms of this lease agreement. Citizens must simply trust the county.

    Part of the problem is that the arena has a competitor in the private sector, the newly-opened Hartman Arena. SMG is justifiably concerned about its contracts with tenants, which it considers proprietary information.

    That’s fair enough — if SMG was a private company. But it’s one-half of a public-private partnership. It gets to use an asset valued at roughly $200 million, provided at no charge by the taxpayers of Sedgwick County, to see if it can earn a profit for itself. Our stake in this means we should get a look. The fact that SMG and the county will not disclose means that citizens will always wonder about the details of the deal.

    This is especially true when government competes with private industry. Holt is already on record as being opposed to the privately-held Hartman Arena, remarking “overall, it would not be in the best interest of the community.”

    Without disclosure, there will always be questions. It would be in the best public relations interest of SMG to agree for public disclosure of the terms of the Wichita Thunder lease.

    Thunder – SMG Lease Inquiry

    Bob Weeks Inquiry The Thunder – SMG Lease May, 2009 Issue # 1: Since SMG has committed to a contract/lease agreement with the Thunder in which there is a major revenue stream for the facility and with terms greater than one year, does the County have to approve the Thunder contract/lease agreement? Response: No, the County does not have to approve the Thunder contract/lease agreement because it is in the sole discretion of the Contract Administrator whether or not to approve the agreement, and even then such approval cannot be unreasonably withheld. It is important to understand that there are two types of contracts covered by section 2.3 (c) of the agreement—contracts that involve paying money out (Section 2.3 (c) i), and contracts involving a revenue stream for SMG (Section 2.3 (c) ii). Contracts that involve paying money out, such as a contract to provide security for the facility, must be approved in writing by the County if it involves a term beyond the management term of SMG. As will be discussed later, this approval can be a simple letter from the Contract Administrator and such approval cannot be unreasonably withheld. The Thunder agreement involves a revenue stream and Section 2.3 (c) ii provides that “SMG and the County will have joint approval rights (which approval right shall be at each party’s sole discretion, not to be unreasonably withheld) for all major revenue streams that can impact the profitability of any Facility …with terms of greater than one year.” Section 2.1 (d) provides that “to the extent that the approval of the County is required under the terms of this Agreement, the written approval of the Contract Administrator shall constitute the approval of the County,” Under the definitions in Section 1, the “Contract Administrator” is defined as – the senior administrative official of the County as from time to time appointed by the County Manager, or such individual person as may from time to time be authorized in writing by such administrative official to act fro him/her with respect to any or all matters pertaining to this Agreement. So to address the first issue, it is in the discretion of the Contract Administrator whether or not to approve the agreement with the Thunder. This approval could take many forms and could be established by policies within the County Manager’s Office. While the initial review of the Thunder contract/lease agreement was limited to a discussion between the Contract Administrator and the SMG’s General Manager, subsequently a more thorough review by the Contract Administrator and an Assistant County Counselor with the SMG General Manager revealed the following notable provisions of the agreement: 1.) The term of the agreement is for 10 ½ years with provisions to terminate in the event of default by either party. 2.) There is a provision for a base rental that we agree is standard in the market with accelerators for future years based upon established indicators. 3.) There are other provisions in the agreement for revenue to be derived by SMG to cover staffing costs and other maintenance considerations. 4.) There is appropriate insurance coverage to protect the operator of the facility. After such subsequent review it is our opinion that the agreement provides adequate protection for the County for the entire term of the agreement and there is no reasonable basis for exercising our discretion to disapprove the agreement. For future contracts/lease agreements that fall under the conditions of the SMG Agreement as identified above, the Contract Administrator will meet with the SMG General Manager of the INTRUST Bank Arena and review any agreement in order to understand the terms and conditions of the agreement and how this might affect the County’s interest. Issue # 2: How can Sedgwick County give its approval to a contract/lease agreement that SMG will not let the county see (wouldn’t approval in a meaningful way mean that the commissioners and the public can read the contract/lease agreement)? Response: Obviously the County can’t give meaningful approval to a contract that we can’t see, but our agreement with SMG specifically allows us to review any agreement in order to understand the terms and conditions of the agreement and how this might affect the County’s interest. See Section 2.6 (a) (i) which provides:. (i) To the extent that SMG has any confidential or proprietary information that it reasonably believes is a privileged trade secret and/or should not be disclosed to a third party to protect the privileged, confidential and/or proprietary nature of such information, and upon the approval of the Contract Administrator, which shall not be unreasonably withheld, SMG shall not be required hereunder to deliver such information to the County, but instead, will afford the County an opportunity to review such information at the Facility during reasonable business hours and upon reasonable advance notice, or on terms mutually agreed upon by the parties in order to protect the privileged, confidential and/or proprietary nature of such information. As mentioned above, we have had the opportunity to review this agreement with SMG in a meeting with the General Manager of the Intrust Bank Arena. In our negotiations with SMG, we intended to give SMG significant authority to run the business of the new arena as they deem necessary as a means for them to sign off on an agreement that puts the risk of losses solely on them. The only reason we wanted the authority to review/approve long term agreements was for the purpose of making sure that SMG wasn’t putting the County in a bad financial position for years that they might not be operating the arena. While initially this is a five year agreement, we have provisions in the agreement that will automatically extend the agreement for an additional five years if they meet certain performance criteria. In other words, there is no reason at this point in our business dealings to think that SMG is operating in anything but the best interest of SMG and the County and such there would be little reason to formally approve the Thunder agreement – let alone have a reasonable basis to withhold approval. With Hartman Arena and Sprint Center (non SMG operated facilities) as competitors in this market, it is of high importance to SMG of keeping their proprietary information from being disclosed publicly. In addition, the County’s financial interest is protected with a provision in the agreement requiring SMG to maintain a system of bookkeeping adequate for its operations and for the use of our auditors. SMG is furthermore required to give the County’s authorized representative access to such books and records. The County has the right at any time, and from time to time, to audit and/or cause nationally recognized independent auditors to audit all the books of SMG relating to the operating revenues and operating expenses of the arena.
  • Kansas open records, not quite

    The Flint Hills Center for Public Policy has produced another important investigative report, this time looking at the difficulty citizens and journalists can encounter when requesting records covered under the Kansas Open Records Act.

    “What started out as research into property valuations in Kansas has turned into a frustrating protracted battle over differing perspectives on open government. Denials and delays have slowed or prevented examination of government fiscal policy as budget and taxation issues were being addressed in the legislature. Access was further frustrated by decades-old computer technology.”

    This reminds me of some of my experiences with open records. One frustrating experience was with former governor Kathleen Sebelius’ office, as detailed in Open Records in Kansas and Open Records in Kansas Follow-Up. It was also a front-page story in the Sunday Wichita Eagle.

    Locally, USD 259, the Wichita public school district, has a poor attitude towards transparency and open records. As detailed in my post Wichita Public Schools: Open Records Requests Are a Burden, then board vice-president Lynn Rogers believes records requests made by citizens are a burden to the district. It seems the Wichita school district is quite happy to take our money, but not requests for information and records.

    Or, the interim superintendent — that’s Martin Libhart — might make a show in public about having information, but then be unable to fulfill the request.

    Sources tell me that Sedgwick County will soon be making a few changes and rolling out a new program that will increase citizens’ access to information. Until then, both citizens and journalists will have to deal with hostile or indifferent government bureaucrats.

    (This is a Scribd document. Click on the rectangle at the right of the document’s title bar to get a full-screen view.)

    Determination and Preparations for a Lawsuit Slowly Extract Public Data – Paul Soutar

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