FRONTENAC — Following the City of Frontenac’s initial delay in providing records on its recent firings of city employees, and subsequent demands of thousands of dollars to produce the records requested by news outlets including the Morning Sun, a statewide government transparency advocacy group has called on the city to reconsider its position.
In a letter this week to the City of Frontenac, Ron Keefover, president of the board of directors of the Kansas Sunshine Coalition for Open Government, who was also writing on behalf of the Kansas Press Association and the Kansas Association of Broadcasters, urged Frontenac’s city government to “reconsider its demands totaling $7,000 to produce records in response to a pair of separate but substantially similar requests recently delivered to the city under the Kansas Open Records Act (‘KORA’).”
In addition to his letter to the city, Keefover released a separate statement to the Morning Sun Monday.
“On behalf the board, we believe the city's handling of this straight-forward request for emails during a limited time period is an indication that Frontenac city officials must have something to hide, especially since state law requires that public records are open unless closed by one of the statutory exceptions,” Keefover wrote. “The city's first denial of the records on the basis that the city must hire a new city attorney to review the request and then later requiring payment of a cumulative charge of $7,000 to the news media in advance seem indicative of city officials wishing to hide these records from the public.”
On Sept. 16, the Morning Sun reported on the Frontenac City Council’s 6-2 vote — taken without prior discussion during any public meeting — to terminate the city administrator, attorney and clerk. The following day, both this newspaper and KOAM-TV reported additional information about the decision.
“Immediately thereafter, each news outlet submitted requests under the KORA to the city,” Keefover noted in his letter. “Both requests sought correspondence delivered to and from certain city officials and employees during August and September of this year,” which would shed light on decisions made during the Sept. 16 council meeting. “For example, the Morning Sun sought ‘[a]ll electronic and written communications, including but not limited to letters, text messages and emails, sent to or from Frontenac City Council members John Macary, Pat Clinton, LaDonna Pyle, Mike Snow, Marc McCully, David Hogard and Brad Reams, Tim Fielder, Terri Kutz, and Linda Grilz for the period Monday, August 26, 2019 to Tuesday, September 17, 2019,’” Keefover wrote.
After at first denying the requests on the basis that it did not have a city attorney — “a development that garnered statewide notoriety” — Keefover wrote, “the city eventually advised each news organization that it would be required to pay $3,500 in order for the city to produce responsive documents.” Frontenac “also advised that staff time in connection with fulfilling the request would be billed at $25.00 per hour, that photocopies would cost $0.25 per page, and that the records would be produced within three weeks of receiving payment,” he noted.
While agencies can charge requesters for staff time to fulfill a request, KORA also limits those charges to “not exceed the actual cost of furnishing copies, including the cost of staff time required to make the information available,” Keefover noted.
“I and the organizations on whose behalf I write refuse to believe that the ‘actual costs’ the city would incur to respond to the requests would reasonably approach $3,500 for either of them,” Keefover wrote.
“The requests are for emails over a recent, and relatively short, period of time,” he noted. The city did not provide “any explanation whatsoever why searching the city’s email costs thousands of dollars,” Keefover added. “In other words, there is no factual basis to suggest that the fees claimed by the city are reasonable. As a result, assessing costs of $3,500 per request appears to violate the law.”
Keefover suggested the City of Frontenac could face legal repercussions over its response to the requests.
“Moreover, the city’s hindrance of access to emails that would shed light on the widely reported troubles facing the city administration smacks of discrimination against the viewpoint of the records requesters and could be in violation of the First Amendment,” he wrote. “In the event this matter were to be addressed through a lawsuit in district court under the KORA, the city’s conduct would give the plaintiffs in such an action a basis to recover attorney fees.”
Keefover also pointed out that Frontenac’s demands for $3,500 each to the Morning Sun and KOAM were in both cases its second response to the news outlets.
“The second responses claimed that the original responses, referencing the absence of a city attorney, were delivered in ‘a timely manner.’ As was widely reported, the city’s original responses to the media outlets’ requests, delivered within three days of receipt, claimed the city did not have to respond further until it had ‘an Attorney in place,’ at which time it would ‘contact you and your request will be processed in a timely manner,’” Keefover wrote.
“The organizations I represent strongly disagree with the city’s defense of its original responses to the media requests. Any claim that a KORA request can be lawfully put on hold because of the presence or absence of any particular person does not comply with applicable law.”
The city’s responses did not explain in detail why an attorney was needed to review the KORA request, why an attorney was not available, when the city would have an attorney, or when specifically the requests would be acted on, Keefover wrote.
“What explanations were given lacked the detail the statute requires,” he wrote, adding that the city’s failure to provide a date and time the records would be available and to provide a written explanation for the denial were KORA violations.
Keefover noted that although the city initially responded within the required time frame, “the stated justification for putting the open records requests on hold is simply a pretext for refusing to act as required under applicable law,” echoing earlier comments from Kansas Press Association Legal Adviser Max Kautsch.
“When a public agency gets an open records request, that request ‘shall be acted upon’ within three business days,” Kautsch wrote in a Sept. 19 statment to the Morning Sun. “Here, the city is refusing to act on the grounds that it does not currently employ a city attorney. But the law mandates a procedure for responding to open records requests. That procedure does not allow for the city to condition its response to an open records request on the presence or absence of any particular individual; if that were the case, public agencies statewide could avoid their responsibilities in any instance where an attorney (or anyone else, such as a department head) is unavailable.”
Frontenac’s initial response “was clearly in violation of established law, was likely in bad faith, and again provides grounds to potential plaintiffs to claim attorney fees in a district court action brought under the KORA,” Keefover wrote in his letter, which was emailed to the City of Frontenac Tuesday.
“The foregoing strongly suggests that the city of Frontenac should review its KORA compliance procedures. Specifically, the organizations I represent call on the city to immediately review its assessment of $3,500 each to the Morning Sun and KOAM and produce a response that includes a reasonable fee, as required under the law.”
Morning Sun Senior Group Publisher Joe Leong said he appreciated the Sunshine Coalition's support.
"We are gratified by the actions and support of Ron Keefover, of the Kansas Sunshine Coalition for Open Government, the Kansas Press Association and the Kansas Association of Broadcasters,” Leong said. “We made a reasonable request for records given the extraordinary actions of the Frontenac City Council late last month. We continue to believe there are substantial concerns about the conduct of the governing body and that the public has a right to know what is in the requested documents. If the Frontenac City Council is above reproach in this matter they should have no issue turning over the records we requested, rather than throwing up substantial stumbling blocks to the public's right to know."