The Kansas Open Records Act (KORA) declares, “It is the public policy of Kansas that public records shall be open for inspection by any person unless otherwise provided, and this act shall be liberally construed and applied to promote such policy.” Most state and local officials embrace the spirit and the letter of the law, but some of them use a variety of means to prevent access to public records.
One exception to KORA says government officials cannot be compelled to “create a record.” The Kansas Attorney General’s office explains, “The KORA applies to public records possessed by a public agency at the time the request is made. It does not require that a public agency do research for you, create a record it does not already possess, or write out their response to your questions.”
To be clear, the law does not preclude government officials from ‘creating a record.’ But this exclusion can be used to thwart an otherwise legitimate KORA request; the agency may have the information requested, but not in the exact manner stated in the request.
The Kansas Department of Health and Environment employed this tactic in response to the Sentinel’s request for “Copies of death certificates or documents containing death certificate information listing the cause of death and all contributing factors for all deaths attributed to COVID-19, with all personally identifiable information removed.” KDHE didn’t deny having the information, but said even if required to release it, doing so would create an “unreasonable burden” on the agency.
The Sentinel experienced another variation on this theme when USD 231 Gardner Edgerton responded to our request for “electronic copies of all communication from district officials to employees and also to parents relating to House Bill 2119, Senate Bill 61, House Bill 2067, and House Bill 2068.” The district told board members, “We will send similar talking points to all employees…,” referring to talking points the district shared with the board in opposition to educational opportunities for low-income students.
Upon receiving the ‘no documents responsive to this request’ response, we asked, “Is the district now saying in this response to our KORA request that there has been no communication to district employees regarding HB 2119, HB 2067, HB 2068, SB 61, education savings accounts, or tax credit scholarships?”
USD 231 declined to directly answer that question. It’s impossible to know, just based on their response, whether there was no communication as they told the board they would do, whether they intend to but have not yet done so, or whether something was communicated but somehow isn’t covered as phrased in our KORA request.
Other commonly-used attempts to thwart access to public records include:
- Overcharging – KORA allows charges to recoup the cost of providing records, but the Sentinel and our parent company, Kansas Policy Institute, have rejected many attempts to charge more than what is allowed under the law.
- Rejecting request for documents in Excel-compatible format – the Gardner Edgerton district tried this tactic when Kansas Policy Institute requested the district’s payroll listing; they eventually provided the information electronically after the Johnson County District Attorney’s office intervened.
- Requiring KORA requests be submitted on a city-designed form – guidance from the Attorney General’s office says citizens are only required to provide their name and a description of the information requested. You cannot be asked to disclose the name of your employer, how you intend to use the information, or to make your request in a particular format; a simple email is sufficient. There is an exception if you are requesting names or addresses of government employees; you can be asked to certify that the information won’t be used for commercial purposes, but that certification does not have to be on a government-prescribed form.
The Attorney General’s office has additional guidance on Open Records requests that may be helpful.
