The Kansas Sunshine Coalition for Open Government has presented a number of awards over the years in two categories, “Friend of Open Government” and “Above And Beyond” for persons and entities, which have gone the extra mile to promote open government in Kansas.
So far in 2017, the Coalition has named Debbie Miller, a longtime resident of Independence, KS, who last April made a request under the open records act for a copy of the form the city uses to evaluate the city manager’s job performance. Ms. Miller was not requesting any personally identifiable information related to any performance evaluation; she simply wanted a copy of the blank form itself. Her request was denied.
Sunshine Coalition Board Member Max Kautsch, a Lawrence attorney who represented Ms. Miller, said because her request was denied, she continued to press the issue to the highest levels of state government by filing a complaint with the state Attorney General’s office. Kautsch described Ms. Miller’s ultimately successful campaign in commentary he wrote on behalf the Coalition for this year’s national Sunshine Week celebration for Kansas news media and legislators. In it, he wrote:
Although the KORA provides access to many documents in the possession of public agencies, those agencies can legally deny access to a document if it falls within an exception in the law. For example, under the KORA, a public agency is not required to disclose “[p]ersonnel records, performance ratings or individually identifiable records pertaining to employees or applicants for employment.”
This “personnel record exemption” is the reason the Independence city administration gave Ms. Miller to justify withholding the blank form she had requested. The city also asserted that it did not have to disclose the form because it “was specifically created to assist in the evaluation of Mr. Micky Webb, the Independence City Manager.”
However, Ms. Miller was not satisfied with that response. She believed that a blank form was public information that could not possibly be exempt from disclosure as a personnel record. Believing the city was in violation of the law, she filed a complaint with the Kansas Attorney General’s Office in May of 2016.
After a lengthy and thorough investigation, the Attorney General’s Office found that the city had indeed violated the KORA. In a letter to the city dated January 30, 2017, Assistant Attorney General Lisa Mendoza wrote that the blank form was “sufficiently generic that it raised a question about whether it was in fact ‘specifically created solely to assist in the evaluation of” the city manager.” Moreover, according to Ms. Mendoza’s letter, a Google search showed that an “identical” document produced by another source existed on the internet.
Thus, the Attorney General’s Office concluded that the city “fell well short of meeting its KORA obligations,” and found the city in violation of law for the manner in which it had responded to Ms. Miller’s request. In turn, the city commissioners signed a “Consent Decree” admitting that the city violated KORA, agreeing to pay a $250.00 fine, and also agreeing, going forward, to “comply with the requirements of the KROA…in responding to each KORA request it receives.” Meanwhile, the City Commission voted not to renew the contract of the city manager, and has begun a search for a new city manager.
The finding of a KORA violation, resulting in the fine and the consent decree, reflect well on the Attorney General’s Office and indicates it is making good use of expanded Sunshine Law enforcement powers granted by the Kansas Legislature in 2015. Still, sunshine would not have come to Independence without Ms. Miller’s determined efforts to challenge the city’s refusal to disclose a blank form. She is an inspiration to members of the public everywhere who are concerned about transparency in government, and she proved that persistence pays off.
This Sunshine Week is a time to celebrate the initiative of Ms. Miller as a concerned member of the public, coupled with action by the state’s open-government enforcement agency, to effectuate change. The process of asserting rights under the KORA and KOMA can often be akin to the state’s motto, “to the stars through difficulties.” However, Ms. Miller’s successful efforts and the city’s decreed consent to abide by the law suggest that more sunshine may be on the horizon in Kansas.
The Sunshine Coalition award program began in 2004 and have included the following recipients:
2004 — Rep. Jene Vickrey, “Friend of Open Government Award” for his work in the Kansas Legislature.
2005 — Sens. Kay O’Connor, Anthony Hensley and Tim Huelskamp “Friend of Open Government Award” for their work in the Kansas Legislature.
2006 — Lawrence Journal-World, “Above and Beyond Award” for work on a lawsuit to get access to all compensation of public officials, including coaches and athletic directors at public universities, which led to a change in the Kansas Open Records Act on the personnel exception.
2007 — Wichita Eagle, “Above and Beyond Award” for its “You Oughta Know” feature on public records access.
2009 — Topeka Capital-Journal, “Above and Beyond Award” for taking on Schools for Fair Funding in an open records dispute. The 2007 settlement won by Topeka attorney Mike Merriam of $12,500 was donated to the Sunshine Coalition for public education on open government.
2011 — Amy Houston was presented with the “Above and Beyond Award” for her work at the Mount Hope Clarion. Houston fought hard to get documents and other information from the city council.
2014 — “Friend of Open Government Awards” to Karen Dillon, at the time a producer with KSHB TV in Kansas City, and Robert and Adlynn Harte, Leawood, whose home was raided by law enforcement and fought to get access to the records; Rep. John Rubin, for his work on probable cause affidavits.
2014 — Mike Merriam, “Above and Beyond Award” for lifetime achievement in defense of open government; Randy Brown, “Above and Beyond Award” for 2014, in appreciation of his support for open government in Kansas.