Archive for Friday, February 6, 2004

Legislation would award attorneys fees, court costs in open records cases

February 6, 2004


— People who are denied access to public records could be awarded attorney fees and costs if a court decides that an agency acted in bad faith, under a House bill discussed in committee Thursday.

Rep. Ward Loyd told the Local Government Committee his bill would aid those who must sue to get records that are deemed public under the Kansas Open Records Act.

Loyd, R-Garden City, said denying attorney fees to plaintiffs when a government agency has acted in bad faith would have a "chilling effect on pursuing access to records which should be open to all."

"It promotes the interest of obfuscating, deep-pocketed bureaucrats, who win by delay and denial," Loyd said. "That is not to be permitted. It is the antithesis of openness."

In 1998, The Garden City Telegram sued the Kansas Department of Transportation after KDOT refused to provide safety rankings for the railroad crossings in Finney County. A Shawnee County District Court judge ruled for the newspaper in 2000, saying KDOT's denial was in bad faith and the agency's position was without reasonable basis in fact or law.

A year later, the court awarded the newspaper $13,000 in attorney fees and costs. The Transportation Department appealed, and the case ultimately went to the Kansas Supreme Court.

The high court agreed that KDOT acted in bad faith in refusing the records, but sent the case back to district court to reconsider awarding of attorney fees.

Mike Merriam, a Topeka attorney who represented The Telegram in the suit, said the Kansas Open Records Act applied only to denial of records, but not to subsequent litigation to obtain those records.

Ultimately, The Telegram was awarded just over $1,400, the attorney fees incurred prior to the case going to court.

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