Kansas records conflict could be handled more smoothly by an open government advisory board

Gordon Self, a legislative staff member working with the Senate Committee on Government Efficiency, explains how the Kansas Open Records Act process works during a 2025 legislative meeting. (Morgan Chilson/Kansas Reflector)

On Wednesday, the state of Kansas allocated $20,000 to retain outside counsel to represent a member of the Kansas Legislature in a complaint Kansas Reflector brought under the Kansas Open Records Act more than a year ago.

This expenditure was required because the Attorney General’s Office faced a conflict of interest between its duties to represent state officials and agencies in legal disputes on one hand, and on the other, to enforce KORA.

Taxpayers should not be on the hook simply because state law creates an unresolved conflict of interest for the body enforcing not only KORA but also its companion, the Kansas Open Meetings Act. Rather, the law should empower the agency enforcing those laws to be free to construe them liberally and enforce them rigorously, not give it an excuse to bow out.

Other states solve this problem in part by establishing an open government advisory board, which includes members of the public.

The membership of these boards is composed in such a way that even if AG office personnel among the membership were to recuse themselves, a quorum would remain. As such, even in the face of a conflict of interest, a recommendation could still be issued with the force of law.

For example, the Texas attorney general enforces that state’s Texas Public Information Act with the help of the Open Government Steering Committee to “advise the attorney general regarding the office of the attorney general’s performance of its duties” under the act. Crucially, among the committee’s 14 members, five seats are held by members of the public, while the other nine are held by public employees, including two from the attorney general’s office.

The makeup of the committee allows the public to have direct, meaningful input on government accountability, if only by being in the room when significant transparency issues that require resolution by the attorney general hang in the balance.

Iowa’s model is particularly instructive. There, pursuant to the Iowa Public Information Board Act, the Iowa Public Information Board is an “independent agency” that coexists alongside the state’s attorney general’s office to “provide an alternative means by which to secure compliance with and enforcement of the requirements of” the state’s open records and open meetings laws through “an efficient, informal, and cost-effective process for resolving disputes.”

According to its website, the “IPIB is a one-stop destination to answer your questions or address your concerns regarding … Iowa’s open meetings and public records laws.”

Of its nine members, the public gets three spots in the form of “representatives from the media including newspapers.” There is no express designation that anyone from the attorney general’s office must be on the board, but like in Texas, the majority of members are public employees or officials.

Crucially, the IPIB is authorized to issue “declaratory orders with the force of law determining the applicability” of Iowa sunshine laws “to specified fact situations and issue informal advice to any person concerning” application of the sunshine laws.

Texas and Iowa are not alone in enacting laws to make sure the attorney general of that state doesn’t face an undue conflict of interest when it comes to enforcing open government laws. New York is one state in which an entirely separate agency, there known as the Committee on Open Government, “is responsible for overseeing implementation” of the state’s sunshine laws.

In lieu of attorney general enforcement of sunshine laws in Pennsylvania, that state has an Office of Open Records, an independent administrative agency that hears appeals from members of the public who have been denied access to records.

Clearly, there are a variety of options for solving the conflict of interest that would not involve spending $20,000 of taxpayer money to defend a state official, particularly when that state official is accused of acting against the interest of those very taxpayers by thwarting transparency.

Adopting some version of the foregoing alternatives would reduce pressure on the attorney general’s office to enforce sunshine laws and allow that office to focus on its duties to represent state agencies.

The most compelling solutions involve ceding some of its enforcement authority to a duly authorized body that includes representatives of the public. Critically, by allowing members of the public to have some input on how sunshine laws are enforced, the attorney general’s office would more effectively maintain credibility even if it continues to be obligated to represent state agencies.

Max Kautsch focuses his practice on First Amendment rights and open government law. Through its opinion section, the Kansas Reflector works to amplify the voices of people who are affected by public policies or excluded from public debate. Find information, including how to submit your own commentary, here.