Archive for Tuesday, November 23, 1999

T FORCE COMPLIANCE

November 23, 1999

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Carla Stovall favors education, not penalties, to get public officials to follow law.

Topeka Capital-Journal

Kansas Atty. Gen. Carla Stovall and her top assistant for public records say they could be more effective in helping the public obtain disputed records if they had the legal power to order the records to be released.

But Stovall said she won't ask the Legislature for that power without a show of support from the public or the news media.

Such support would help her lobby legislators, she said. It also would help fight any lobbying against strengthening the law or help sway lawmakers against any competing proposals aimed at weakening it.

Assistant Atty. Gen. Steve Phillips handles public inquiries and complaints about compliance with the state's open meetings and open records laws. He said public officials generally heed his advice, but it would be nice if he could compel them to do so without going to court.

And Stovall said she thought the authority to issue legally binding opinions would help ensure public officials comply with the law.

But her last attempt to strengthen the law failed, she said, and she isn't ready to try again without some backing.

Stovall said she asked the Legislature in 1996 to expand the law to require governing bodies and their subordinate agencies to tape-record closed-door meetings, called executive sessions. The tapes could have been used to settle disputes regarding whether a closed meeting was called improperly.

The idea received no support from the public or the news media, she said, and the proposal never came to a vote.

Without some show of public support, a similar fate likely awaits any suggestion to give her office the authority to issue binding opinions in public records cases, Stovall said.

Phillips said he usually forwards inquiries about public records to the appropriate county attorney if the inquiry is really a complaint against a local unit of government.

But it's not unusual, he said, that the very next call is a request for advice from the official who denied access to the record.

"We're routinely able to work those out informally, saying, 'Yes, it's an open record,' or 'No, it's not,'" Phillips said.

Stovall said many such inquires involve an official who is getting a request for a document for the first time. Not knowing whether the record is public, he or she will err on the side of denying access, then call to ask if the action was legally correct, the attorney general said.

But an attorney general's opinion or the office's attempts at informal diplomacy don't bind state agencies and local units of government.

"We can't force an agency to give up a document it doesn't want to," Stovall said.

The attorney general's office has the power to take public officials to court and ask that they be ordered to turn over a disputed record. But Stovall and Phillips said they haven't yet had to do so to settle a dispute.

The Open Records Act imposes no penalty on public officials who violate it, but allows people who sue over denied records to be awarded attorney's fees if they win. By comparison, the Open Meetings Act allows a maximum fine of $500, although Phillips said he didn't think the courts had ever levied more than $50.

Phillips and Stovall said they prefer to educate public officials about the laws rather than penalize them.

"It's a difficult thing to penalize a local elected official," Phillips said. "The important thing for me is the ability to order a record opened."

Their office has conducted numerous such education programs, including presentations to several professional associations such as the Kansas Association of Counties and the County Clerks Assn.

They also offer programs for newly elected officials and programs geared for the associations' annual meetings.

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