TOPEKA — A Shawnee County judge tossed out a lawsuit from BuzzFeed alleging Kansas Secretary of State Kris Kobach's office denied its open records request for emails containing immigration- and election-related terms.
A BuzzFeed representative said the company would sue Kobach again if it encountered another hurdle, and Kansas open records experts rebuked the case as an example of declining transparency.
District Judge Larry Hendricks ruled Kobach's office simply clarified payment was needed in advance of the records search and didn't deny BuzzFeed's request. BuzzFeed first sued Kobach and his office in October 2017, believing the office denied a reporter’s records request when she challenged the $1,025 cost of conducting a search of Kobach’s emails. Emails BuzzFeed submitted in court filings show its attorney and the Kansas Secretary of State's Office senior counsel continued to negotiate the records request, Hendricks noted.
"The gist of this correspondence appears to be clarification of certain issues culminating in an agreement to submit the advanced payment in exchange for the requested records search," Hendricks ruled. "Nothing in the correspondence hints at a denial of (BuzzFeed's) request."
BuzzFeed paid the fee in February but argued a January motion from the secretary's office requesting Hendricks dismiss the lawsuit was moot. BuzzFeed also asked the court to order KSOS to report the volume of documents found in the search within 21 days and file a report for the court within 60 days.
Hendricks made no mention of that request in his Friday ruling. He also ignored demands from both parties requesting attorney fees.
Matt Mittenthal, director of communications for BuzzFeed News, said Hendrick's ruling gave Kobach's office a chance to fulfill its obligation under the open records law. The company remains open to further legal action.
"Should the Secretary's office violate these obligations in the future, we have every intention of suing again to enforce them," he said.
Kobach spokeswoman Samantha Poetter said Kobach is "committed to transparency."
"His office will continue working to satisfy open records requests in a fair and timely manner," she said.
In an unrelated case, Kobach has defended himself for the past week in Kansas City, Kan., federal court, where the American Civil Liberties Union has challenged him to prove claims of widespread voter fraud.
BuzzFeed's case highlights growing concern with transparency in the state, open records advocates said.
Ron Keefover, president of the Kansas Sunshine Coalition, condemned the ruling, calling it "an exclamation point" to the need to overhaul the Kansas Open Records Act.
"Until the Kansas Open Records Act is reformed, I am afraid our state will remain a dark state when it comes to public information laws," he said. "The courts, at this point, don't appear to be helping matters."
Regardless of the dismissal, the case underlines the difficult nature of obtaining records from the state's public agencies, said Doug Anstaett, executive director of the Kansas Press Association.
"It's just a constant battle to get public officials to give up information without a fight," he said. "This jumping through hoops is nothing more than a delay tactic in many cases, and it essentially deprives the public of information it has a right to know."
BuzzFeed's dispute with Kobach's office began last June, when BuzzFeed reporter Kendall Taggart filed a records request for emails, including attachments, sent or received from May 1, 2017, to the date of the records search. The request sought emails containing any of 30 terms, including ICE, immigrant, Trump, voter, fraud and Mexican. BJ Harden, deputy secretary of state for policy, said on July 5 that staff would need 13 hours to search for the records with an hourly fee of $25 or a total of $325. In addition, a staff attorney would need 20 hours to review the documents at an hourly fee of $35, adding $700 to the bill.
Taggart asked the office to reconsider, noting the public interest in Kobach’s work. Sue Becker, senior counsel for KSOS, replied on Sept. 5, arguing Kobach’s work with the White House, immigration and presidential advisers, among other things, isn’t being conducted on behalf of Kansas. The six terms that would be covered by KORA, Becker wrote, are voter, voting, fraud, illegal, alien and noncitizen.
BuzzFeed argued in its October petition that the response amounted to a blanket rejection and was improper.
Becker in January clarified with BuzzFeed attorney Matt Topic that payment was due in advance. She told Topic her email to Taggart was meant to alert the reporter that KORA exemptions would likely apply to parts of her request.
"This was in an effort to avoid having her be disappointed with the result after paying for the searches and document review time," Becker said. "We do not reply with blanket assertions."