With little incentive to be transparent, the state and some local governing bodies often fight Kansas Open Records Act requests in various ways. The most common is to quote a “go away price” for records in order to discourage the public — and the media — from demanding such records.
It’s a situation that has prevailed for decades and that previous changes to KORA have attempted to combat — indeed, as recently as 2015 Kansas has ranked 43rd overall in transparency.
The Kansas Press Association is advocating legislation this year that would help to curb exorbitant fees.
Senate Bill 386, which will be debated in the Kansas Senate Committee on Transparency and Ethics later this month, would — if passed and signed into law — take steps to curb out-of-control KORA fees.
KPA Executive Director Emily Bradbury said the changes in the bill would include requiring that copying fees be charged at the hourly rate of the lowest-paid person who is capable of providing the records, prevent custodial agencies from charging for the records search, and clarify that 25 cents per page — or less — is considered a “reasonable fee” under law.
“What we have seen happen, is someone will say ‘OK this is going to be a lengthy search, it’s going to be $300.'” Bradbury said. “And then [the records custodian comes] back and there’s no records.”
Records custodians are allowed, under current Kansas law, to charge not just for the staff time needed for copying but for the time it takes to find the records — and to require payment in advance, before it’s clear there are even any records responsive to the request.
“People are paying for searches that result in no records,” Bradbury said. “That has been an issue.”
Bradbury said the bill was prompted — in part — by the exorbitant fees the City of Frontenac attempted to charge various media organizations investigating the abrupt firing of the city administrator, city clerk, and city attorney.
In the waning months of 2019, both the Pittsburg Morning Sun and local television station KOAM-TV filed substantially similar records requests in relation to the firings, and — after initially refusing to even consider the requests — attempted to charge both organizations $3,500 each.
KOAM filed a formal complaint with Kansas Attorney General Derek Schmidt who ruled that Frontenac had violated KORA in several areas, including trying to charge hundreds of dollars per hour for an attorney to review records before providing them to the media.
“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.”
This is the second such attempt in recent years to reform KORA costs, the last such attempt failed, but Bradbury said she’s optimistic this will pass — in part because the bill follows closely a 2020 draft AG’s opinion laying out more or less all of the same issues as the bill.
KPA Attorney Max Kauch, who drafted the bill, said this was key.
“The most important aspect of SB 386 is that it requires agencies to assess fees for ‘staff time’ necessary to respond to open records requests based on ‘the lowest hourly rate of the person who is qualified to provide the requested records,'” Kauch said in an email statement. “That way, requesters would avoid being charged exorbitant hourly rates for the ‘staff time’ spent by high-ranking officials to respond to KORA requests when such tasks could be accomplished by a lower-paid person. Importantly, this requirement is consistent with the Attorney General’s draft version of open records guidelines on his office’s website, which requires agencies to cap hourly rates for staff time.”
Bradbury said she believes the bill will pass.
“We really feel like ‘hey, if this is a best practice, we would love to codify this into statute,'” she said. “Because if this is a best practice that the AG is telling government officials to use, then why don’t we put this in the law? And we do think we have a shot this year. We really do.”