Background
The following template is for journalists seeking to compel a public agency1 to turn over public records requested under the Kansas Open Records Act (“KORA”).2 The template provides a general outline for petitions filed in a Kansas district court with areas for editing in brackets. A petition should be filed with the court only after an agency has denied, in whole or in part, a request for access to public records.
KORA states that, except as otherwise provided in the statute, all public records3 shall be open for inspection by any person.4 A list of the records that an agency may withhold from disclosure is contained in K.S.A. 45-221.
KORA requires each public agency to adopt procedures for requesting and obtaining access to its public records,5 and to designate a freedom of information officer to respond to inquiries.6 Before making a request for records from any agency, it would be advisable to contact the agency or review its web site to ensure that your request is made in compliance with the agency’s procedures, and to determine what fees might be charged for access to or copies of the requested records.7
KORA also requires an agency to act upon each request for access to public records “as soon as possible, but not later than the end of the third business day following the date that the request is received.”8 If the agency intends to grant the request but does not afford immediate access to the requested records, the custodian of the records is required to give a detailed explanation of the cause for delay and the place and time when the records will be available for inspection.9 If the agency denies the request, and if the party seeking the records requests a written statement of the reasons for the denial, the agency must provide a written statement of its grounds for denying the request.10
If an agency denies all or part of a request for access to public records, the person seeking the records has two options for compelling compliance with KORA.
1. Optional: File a complaint with the Kansas attorney general, a county attorney or a district attorney.
The attorney general, county attorneys and district attorneys will accept complaints from the public concerning an agency’s non-compliance with KORA. If the attorney general receives a complaint about a local agency, he or she will normally refer the complaint to the appropriate county or district attorney.
In investigating alleged violations of KORA, the attorney general, county attorneys and district attorneys may subpoena witnesses, evidence, documents and other materials.11 They may also file lawsuits to compel agencies to comply with KORA.12 However, in any investigations they conduct or lawsuits they file, the government attorneys will be acting on behalf of a state or local government, and not on behalf of the individual who made a complaint about an agency’s actions. Thus, while filing a complaint with the attorney general, a county attorney or a district attorney is an option that should be considered, it is important to recognize that the interests of the person seeking records will not be the primary concern or responsibility of the government lawyers who investigate and litigate the complaint.
Additional information regarding filing a complaint with the attorney general can be found here.
2. File suit in Kansas district court.
A person whose request for records has been denied may file a lawsuit to enforce the requirements of KORA.13 The lawsuit must be filed in the Kansas district court for the district in which the requested records are located.14 The court may require the losing party to pay the other side’s litigation costs and reasonable attorneys’ fees, if it determines that the losing party’s actions were “not in good faith and without a reasonable basis in fact or law.”15
A lawsuit is initiated by filing a petition with the court. The following template may be used in preparing a petition to compel the production of public records that have been improperly withheld.
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1 KORA applies to all “public agencies” in Kansas. The term “public agency” is defined broadly to include not only state and local government offices, officers, agencies and instrumentalities, but also other entities that are supported in whole or in part by public funds received from state or local governments. See K.S.A. 45-217(f).
2 KORA is set forth in the Kansas Statutes Annotated (“K.S.A.”) 45-215 – 45-250.
3 As used in KORA, the term “public record” means “any recorded information, regardless of form or characteristics, which is made, maintained or kept by or is in the possession of any public agency . . . .” K.S.A. 45-217(g).
4 K.S.A. 45-218(a).
5 K.S.A. 45-220(a).
6 K.S.A. 45-226.
7 K.S.A. 45-218(f) and 45-219 authorize agencies to charge fees for providing access to or copies of records, and 45-219 sets forth guidelines for those fees.
8 K.S.A. 45-218(d).
9 Id.
10 Id.
11 K.S.A. 45-228.
12 K.S.A. 45-222(a).
13 K.S.A. 45-222(a).
14 Id.
15 K.S.A. 45-222(c & d).