In a 17-page finding, the Kansas Attorney General’s Office last week concluded that the City of Frontenac violated the Kansas Open Records Act when it attempted to charge KOAM TV — and several other news outlets $3,500 for records relating to the September firing of the top three officials in the city.
According to the finding, in a letter dated September 18, 2019, Zach Dodge, reporter, KOAM and Fox 14 News, sent a KORA request to the City of Frontenac (“the city”) requesting “an opportunity to inspect or obtain copies of public records that include personal and work texts and emails between August 1st, 2019, and September 18th, 2019, between all Frontenac city council members in regard to firing city of Frontenac employees Tim Fielder, Brad Reams, and Terri Kutz, in regards to a vote to fire city employees Tim Fielder, Brad Reams, and Terri Kutz, and in regards to rehiring Jayme Mjelde …. ”
According to the finding, on September 25, 2019, the city sent Mr. Dodge a letter advising that “‘[W]e have performed an initial assessment of the time and costs associated with your request.’ The city further advised that consistent with its ordinance it would charge $25.00 per hour per employee who performed the search, as well as $.25 per page for copies. It also charged for the interim city attorney’s time at the rate of $225.00 per hour. The city requested advance payment in the amount of $3,500.00 for providing access to or furnishing copies of records.
“The city’s letter to Mr. Dodge dated September 25, 2019, did not explain the basis for the requested fee of $3,500.00, or how this was equivalent to the actual costs necessary to provide Mr. Dodge with the records he requested.
“The city’s Ordinance 2013-01 establishes fees to be charged to persons for access to or copies of public records, including $25.00 per hour for staff time and $.25 per page for copies. The city’s ordinance does not establish any per hour fee for attorney time.”
According to the finding, after a search by the city — which was reviewed by the AG’s office — of all council member’s cell phones and emails, no records responsive to the requests were found — meaning there were no communications related to the abrupt firings.
“While the city may recover its actual costs in responding to a KORA request, those costs must still be reasonable,” the attorney general’s office wrote in the finding of violation. “An hourly rate of $225.00 per hour for attorney time is per se unreasonable. Outside counsel may charge a governmental entity for its services. However, based on the public policy and purpose of the KORA, it is unreasonable for a public agency to pass those costs onto a requester without a significant reduction in the hourly fee rate.”
Moreover, the AG’s office said the city conducted the search and found no records responsive to the request in the first place.
“We note that as a part of our investigative inquiry, we asked the city to explain what efforts would be required to search for responsive records, as well as to actually search for and produce to us the records that were responsive to Mr. Dodge’s request, Lisa Mendoza,director of the Open Government Enforcement Unit, wrote. “Following an actual search for records, the city discovered that, in fact, it had no responsive records. The city tasked each city council member with conducting a search of all cell phones, electronic devices and computers each member owned. Following this search, each council member reported that he or she ‘did not send or receive any communications by personal text, work text, or by email between August 1, 2019 and September 18, 2019’ about the firings of the city attorney, administrator or clerk, and the rehiring of Ms. Mjelde.”
Max Kautsch, who is the legal adviser to the Kansas Press Association, said in an emailed statement the finding is good news for transparency.
“The Attorney General’s finding in this matter advances open government because it has now made clear that a public agency cannot assess attorney fees to requesters under the Kansas Open Records Act that equal or exceed fees attorneys in private practice might charge,” Kautsch said. “The ruling provides needed guidance for an ambiguous statute that simply requires public agencies assess ‘reasonable’ fees. Now that the AG’s office has found that such exorbitant attorney fee rates are unreasonable, Kansans face one less hurdle in their attempts to obtain the records public agencies are obligated to provide by law.”
Ron Keefover, of the Kansas Sunshine Coalition, which had earlier sent a letter pushing the city to comply with KORA agreed.
“I think it is a significant victory for open government for several reasons,” he said. “First, the opinion makes clear that governmental entities, such as Frontenac, must have an understandable and clear protocol in place for responding to requests made under the KORA. Second, the opinion also confirms what the Sunshine Coalition maintained from the start; that $3,500 the City of Frontenac was trying to extract from each of two records request was an arbitrary charge without no basis other than perhaps to make the media go away. While the City in its wisdom apparently is free to pay outside counsel that kind of money at $225 per hour to review a KORA request, they cannot then demand those asking for the records to pay such an amount. Further, there was no cost breakdown of that charge ever given.
The Coalition was particularly pleased that the AG’s determination of a violation can stand as a warning to other cities about the necessity to impose reasonable fees for records requests. Further, under today’s AG opinion, those at the City of Frontenac involved with responding to KORA requests must now attend formal training on the act, something that clearly is needed there. Finally, at the end of the day, the investigation results now show for the first time publicly that there were no emails responsive to the KORA requests to begin with. How simple all this could have been with a reply by the City to those requesting the emails, that no requested records existed.”
As part of the finding, the AG’s office ordered the City of Frontenac to:
- Cease and desist from any further violation of the KORA;
- Review and amend its city ordinance outlining fees for access to public records to ensure compliance with the KORA;
- Adopt, review, or update any internal city policies governing how staff is to respond to KORA requests, including the calculation of costs necessary to do so;
- Establish and maintain a checklist for city staff to use and consider when calculating actual costs necessary to respond to a KORA request;
- Identify at least one and a half hours of training on the KORA for any interim or permanently appointed city attorney, city administrator, city clerk, city records custodian or others required to respond to or process records requests, and each member of the city council, and;
- Provide the attorney general with a written report of compliance within 60 days of the finding of violation.