Unit would elevate open government's importance

Posted January 22, 2014

By Andy Marso, Topeka Capital-Journal

The office of Kansas Attorney General Derek Schmidt is proposing a special two-person unit within his agency devoted solely to investigating Kansas Open Meetings Act and Kansas Open Records Act complaints.

The measure has the support of the Kansas Press Association. Doug Anstaett, the organization's executive director, told a legislative committee Tuesday that housing an open government unit within the attorney general's office would send a message that such complaints are a high priority.

“It’s a bill that elevates the importance of open government to a new level,” Anstaett said of House Bill 2346, which the House Judiciary Committee reviewed Tuesday.

The attorney general's office and the Kansas Association of Counties also came out in favor of the bill. The committee took no action on it, pending more information from the press association.

Anstaett said he had several examples of potential violations of open government law that he would provide.

“They are widespread," Anstaett said. "It seems we continue to make the same mistakes over and over.”

Citizens or media members who believe violations of such laws have occurred are currently able to take the alleged offending parties to court with a civil lawsuit, or refer complaints to the local district or county attorney.

They also can take their complaints straight to the attorney general's office, which, if it finds evidence of a violation, may pursue its own suit. Lisa Mendoza, an assistant attorney general, said that has created a resources problem within the office, as she seeks to respond to the complaints forwarded to her while also handling a caseload of unrelated prosecutions.

“It maybe doesn’t get as much immediate focus as it should,” Mendoza said of government transparency law, though she assured the committee her office takes all KOMA and KORA complaints seriously.

Mendoza said establishing the open government unit would provide an intermediate step of administrative review of complaints and enforcement of the law before full-on litigation.

The bill also would establish an advisory group made up of citizens, media members and possibly legislators to assist the open government unit.

Mendoza noted that under HB 2346, local prosecutors would still be free to pursue enforcement if complaints were forwarded to them rather than the attorney general.

“We’re not taking away any authority from the county and district attorneys,” Mendoza said.

Anstaett said in some instances, though, local prosecutors might be reluctant to investigate open government complaints against the same county commissioners who hold the purse strings to their budgets.

Anstaett said his group's research suggests that three-fourths of the open government complaints in Kansas come not from the media but from private citizens, who are even less likely to pursue litigation than news companies.

"If you don’t have any financial wherewithal, basically when they say 'No' you go home," Anstaett said. "Even if you might deserve to get that record.”

HB 2346, he said, would give citizens another option.

The attorney general's office said it expects the new unit to cost about $160,000 per year, which would come out of the state general fund initially and later be funded in whole or part through judgments against those who either file frivolous complaints or government entities that are found to have acted in bad faith by violating the KOMA and KORA statutes.