In a rare unanimous vote, the Kansas House and Senate both passed a bill aimed at containing costs under the Kansas Open Records Act.
HB2134 — which Governor Laura Kelly is expected to sign — makes several changes to KORA including limits on fees and allowing the person requesting record to appeal a fee’s reasonableness to the Secretary of Administration if the responding public agency is within the Executive Branch.
The bill prohibits an agency from charging a fee in excess of the actual cost of furnishing copies of requested records, and specifies that actual costs include the cost to review requests and redact the requested records. The bill also prohibits any incidental costs incurred by the public agency not attributable to furnishing the requested records from being included.
Additionally, if an agency incurs costs for staff time to provide access to or furnish copies of public records, the bill requires the agency to use in good faith the lowest cost category of staff reasonably necessary to provide such access or copies. The bill requires charges for staff time to be based on the employee’s salary or hourly wage, not including the cost of employee benefits.
Agencies will also be required — upon request — to provide an itemized statement of costs. The statement must include — but is not limited to — the hourly rate for each employee involved in making the records available and an itemized list of any other fees charged to provide access to, or copies of, the requested records.
Executive branch agency heads will be required to establish fees for records.
The bill also requires agencies to make “reasonable efforts to contact” requesters to discuss mitigating costs when staff time exceeds five hours or the estimated cost exceeds $200.
Bill should reduce the use of “go-away” fees
Exorbitant fees to fill open records requests are fairly standard practice across the country and in Kansas. Known as a “go away price” the hope is if a news organization or resident is quoted an outrageous sum for records they’ll simply drop the request.
It’s a situation that has prevailed for decades and that previous changes to the Kansas Open Records Act (KORA) have attempted to combat — indeed, as recently as 2015 Kansas has ranked 43rd overall in transparency.
Legislation to fix some of the deficiencies in KORA failed in the Legislature in 2022.
KORA states: “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.”
State law had set 25 cents per page as a “reasonable” fee that presumably would be the only cost charged since charges were not supposed to exceed actual costs. The actual cost to print is closer to a nickel, so 25 cents presumably would include employee time. Many local government entities have been charging 25 cents per page plus employee time, however, in clear violations of the law’s intent. Some had also started charging per-page fees for electronic copies even though there is no cost associated with attaching an electronic document to an email; employee time can be charged but HB 2134 will prohibit per-page charges for electronic copies.
The KORA changes go into effect on July 1 of this year if Governor Kelly signs it or allows it to become law without her signature.
