Earlier this year, the City of Frontenac in southeast Kansas requested $3,500 to provide documentation surrounding the secretive dismissal of city employees. Now the city says state law doesn’t require them to provide the documentation, but the Kansas Press Association disagrees.
Officials’ actions raise questions about what the city is trying to hide about the September 16 firing of then-City Administrator Brad Reams, City Clerk Teri Kutz, and City Attorney Tim Fielder, without a discussion or executive session.
On November 17, the Pittsburg Morning Sun asked for “All electronic and written communications, including but not limited to letters, text messages and emails, sent to or from Frontenac City Council members John Macary, Pat Clinton, LaDonna Pyle, Mike Snow, Marc McCully, David Hogard, and Brad Reams, Tim Fielder, Terri Kutz, and Linda Grilz for the period Monday, August 26, 2019, to Tuesday, September 17, 2019.”
The City of Frontenac then responded that, without the city attorney they had fired just a few days before, they could not respond to the request. But as the Morning Sun reported, state law allows for no such exemption. A few days later, the city said it would cost $3,500 to provide the requested records.
The Sentinel sent an identical records request on November 25 but got a very different answer.
New Frontenac City Attorney Stephen Angermayer replied that, under the Kansas Open Records Act, a “‘public record’ shall not include: records which are maintained or kept by an individual who is a member of the legislature or of the governing body of any political or taxing subdivision of the state.”
However, in 2016, KORA was amended to clarify the exemption applies to personal notes made by an individual and that, “Any recorded information, regardless of … location, which is made, maintained or kept by or is in the possession of (A) Any public agency; or (B) any officer or employee of a public agency pursuant to the officer’s or employee’s official duties and which is related to the functions, activities, programs or operations of any public agency. (K.S.A. 45-217(g)(1).)”
The Sentinel then sent Angermayer another letter outlining serious concerns with the response and noting KORA “shall be liberally construed and applied to promote” openness according to KSA 45-216. In other words, records are presumed open and the requested records must be released unless an exemption applies. The burden rests on the public entity to prove the requested records are exempt from disclosure.
On September 17, 2019, the Pittsburg Morning Sun requested the very same information, and indeed as did THE SENTINEL on November 25, 2019 when WE submitted the identical request. The City Clerk correctly determined the records were in fact “open”. Now THEY SAY THE reCORDS ARE not open.
Additionally, the Sentinel cited the 2016 changes in the law.
Angermayer returned substantially the same response as they did with the first request while citing a 2015 opinion by Attorney General Derek Schmidt, which was apparently the source of the 2016 changes.
Kansas Press Association Legal Adviser Max Kautsch said Angermayer’s interpretation is incorrect.
“While the statute the city attorney cited, K.S.A. 45-217(g)(3)(B), does exempt ‘records which are made, maintained or kept by an individual who is a member of the legislature or of the governing body of any political or taxing subdivision of the state,’ that statute does not apply to the papers’ requests,” Kautsch wrote in an email. “As a commentator wrote when the law was originally passed in the 1980s, the legislative intent of that language was ‘to exclude records kept by individual members but not records of the governing bodies they serve. It excuses individual members of such governing bodies from the burden of producing records that they maintain personally in their performance of official duties, but the records of the governing bodies they serve are still considered public records and thus must be made available.'”
“As the records requested by the paper relate to the activities of the governing body, rather than personal records of any administrator, the provision cited by the city attorney is inapplicable, and the city must respond in a manner compliant with KORA.”