The open records request itself was simple and straightforward.
The path to accessing public documents from the state’s top lawyer was circuitous and delayed, pockmarked by multiple exchanges of letters and emails between attorneys, each using dense and belabored language to argue the finer points of law.
That’s just part of the job, we typically say. It’s unfortunate but true — many bodies of government from local to federal ignore, delay and fight open records requests from the public, which includes the media. Some sincerely believe they are protecting their constituents (by keeping information from said constituents), while others have reasonable reasons for shielding some information, such as contract negotiations and land acquisition.
This case — this unnecessarily protracted debate over minute details — was especially troubling because of who was on the other side of those emails and letters. It was Cheryl Whelan, assistant attorney general. Whelan holds a second title: director of open government training and compliance.
That’s correct. Whelan is the champion for open government for the state of Kansas.
I’m on the board of the Kansas Sunshine Coalition. As such, I’ve heard Whelan address local governments through sessions about the Kansas Open Records Act and Kansas Open Meetings Act, as well as lead a panel discussion on those topics. She had all the right answers then about the importance of transparency and how information belongs to the people.
Topeka Capital-Journal business writer Morgan Chilson’s request on Oct. 11 was basic. She wanted to see all of the KORA requests received by the attorney general’s office from Sept. 18 to Oct. 11.
Whelan responded two days later with this volley: “Although you do not mention it, we have interpreted your request under the provisions of the Kansas Open Records Act (KORA), K.S.A. 45-215 et seq.”
The title of Chilson’s email to the A.G.’s office? “Media — KORA request.”
Chilson references the Kansas Open Records Act five times in her request, including in her opening salvo: “Re: Request for access to records under the Kansas Open Records Act.”
Whelan’s confusion as to the intent of Chilson’s request was perplexing. Nonetheless, she went on to say her office had “begun the process” of responding to the request but wouldn’t be able to comply within three days as required by law. She said she couldn’t provide an exact date and time for when the records would be available.
KORA K.S.A. 45-218(d) reads, “If access to the public record is not granted immediately, the custodian shall give a detailed explanation of the cause for further delay and the place and earliest time and date that the record will be available for inspection.”
Whelan failed to do so, and Capital-Journal attorney Max Kautsch on Oct. 20 brought the oversight to her attention. On Oct. 25, the A.G.’s office turned over the requested documents without addressing Kautsch’s question.
Kautsch called the lack of communication from Whelan “incredibly disappointing.”
“While it is telling that they responded so quickly, in my opinion, until the A.G. is sued over this practice, the ‘slow walk’ will continue,” he said.
A review of those records led to a subsequent request, another confusing response, ongoing communication problems and another failure to comply with KORA’s “earliest time and date” requirement.
Many government entities respond at the tail end of three business days to acknowledge receipt of a KORA request and tell us they will “let us know” when the records might be available or how much compiling the records might cost us. (Outrageous costs for fulfilling open records requests will be a topic for another day.)
It’s unclear whether Attorney General Derek Schmidt was aware of our open records request. His office undoubtedly hears many complaints. A call to Whelan at the A.G.’s office Monday morning was directed to Jennifer Montgomery, public information officer. Montgomery declined a request to speak to Whelan but said questions could be sent to Montgomery, who would “work with her to provide answers.”
What is clear is the right to inspect and obtain public records in Kansas seems to be getting more difficult, whether it stems from officials’ lack of knowledge about the law or a defiance testing the public’s intestinal fortitude to go to court.
At its core, we need the attorney general’s team to be the public office bending over backward to follow the letter of the law, to respond to our attorney’s queries about falling short, and to champion open records and transparency in government.
That didn’t happen here.
Tomari Quinn is editor and vice president of audience for The Topeka Capital-Journal.