The Americans for Prosperity Foundation-Kansas recently won a victory when Kansas Attorney General Kris Kobach found that the Kansas Department of Commerce violated the Kansas Open Record Act (KORA) by failing to turn over documents responsive to requests under the act.
“In the process of responding to our inquiry, Mr. (Bob) North noted he discovered an additional group of documents should have been provided to you that were not provided in the department’s response to your request,” the AG’s office wrote. “We have confirmed these records have been mailed to you.
“Because the department did not provide all records responsive to Americans for Prosperity Foundation’s November 10, 2021 request, the department violated the KORA.”
In other words, after more than three years of requests by AFPF-Kansas — and the filing of multiple complaints under KORA—North, Commerce’s general counsel “found” additional records that his office had initially not turned over.
Despite finding Commerce had violated the law, the AG’s office said it would not take enforcement action.
“The KORA provides a broad range of remedies to help ensure that a public agency does not ignore its provisions,” the AG wrote. “Ultimately, our goal is to ensure compliance with the law. The department acknowledged its mistake in failing to provide all responsive documents to Americans for Prosperity Foundation, but it was only through the investigation of your complaint that this mistake was discovered. Moreover, while our investigation did not determine the department intentionally delayed or prolonged its response to your request, we are concerned with the department’s internal procedures for responding to KORA requests that caused the delay in this matter. While we decline to pursue formal enforcement action, we will work with the department to ensure it takes steps to review its internal KORA procedures to ensure that no other individual experiences the same difficulties.”
AFPF-Kansas Director of Investigations Kevin Schmidt said the delay was unacceptable.
“It shouldn’t take an investigation from the Attorney General to get an agency to release records requested over three years ago,” Schmidt said in an email statement. “It’s clear from this investigation that the Department of Commerce needs to reform how it handles KORA requests. We thank the Attorney General’s office for conducting this investigation and for promising to take steps to improve the KORA process at the Commerce Department.”
AFPF-Kansas has yet to receive the ‘found’ records
Schmidt said North initially physically mailed the records to an address that has never been associated with AFPF-Kansas, and an email chain obtained by the Sentinel shows that requests to email the records have been ignored.
On Jan. 14, 2025, North told Schmidt the records had been sent via certified mail on Jan. 10, 2025, and “should be there any minute.”
As of publication, AFPF-Kansas has not received the records.
Moreover, the Kansas Supreme Court has held in Kelly Roe v. Phillips County Hospital that electronic records must be produced in native format, i.e., they may not be printed and scanned, but records custodians “must provide copies of these records in the format it stores them.”
AFPF-Kansas has been fighting with Commerce for over three years
In November of 2021, AFPF-Kansas filed a series of Open Records Act requests with the Department of Commerce related to the State’s STAR Bond program. However, Commerce still has not provided all of the requested records.
The limited number of documents provided by the Kansas Department of Commerce showed a startling lack of oversight of a program that involves more than a billion dollars of taxpayer funds.
According to a release from AFPF-Kansas, the 2021 KORA request sought access to all internal or external studies or reports, project feasibility studies, and e-mail communications about the STAR Bond program.
On Dec. 14, 2022, AFPF-Kansas formally filed a complaint under the Open Records Act and AFPF-Kansas said this is not the first time that complaints have been made about how Commerce handles KORA requests related to its economic development programs.
In August of last year, the organization was forced to file a second complaint after not receiving documents requested as part of an investigation into the Commerce-run corporate welfare scheme called the Attracting Powerful Economic Expansion Act (APEX).
Just hours after filing the complaint, Commerce found the records they had not produced for more than seven months.
“Commerce has not only failed to produce those records, but the agency has not responded to a single inquiry about the status of the request since its original reply on January 9, 2024,” a release read. “Along with demanding Commerce provide those APEX reports, AFPF-KS continues to request the Attorney General’s office open an investigation into how Commerce responds to KORA requests.”
