Kansas legislative proposal focuses on open records enforcement

? Improperly withholding public records would be easier to investigate under a legislative proposal that has the backing of Attorney General Derek Schmidt.

The goal of the measure is to allow prosecutors to more quickly get to the bottom of claims that details have been improperly redacted, The Topeka Capital-Journal reports.

The bill, which lawmakers in the Senate Judiciary Committee are expected to work on this week, comes after Kansas State University responded to a request from The Capital-Journal about how some details of Gov. Sam Brownback’s budget proposal were developed by releasing emails with the pages nearly blacked out. The redactions have drawn condemnation from Senate Minority Leader Anthony Hensley and scrutiny from First Amendment lawyer Mike Merriam.

Currently, county or district attorneys and the attorney general are tasked with investigating alleged open records violations. Prosecutors need to review the full record to determine whether a document has been improperly redacted or withheld.

But Schmidt says accused violators often are hesitant to turn over records that have not been redacted because they fear the records then will be improperly released. Under the legislation, prosecutors would be prohibited from releasing the documents without a court order in a move designed to reassure agencies.

“This provision allays that concern and allows a full investigation in circumstances such as this, with the release ultimately being subject to judicial determination as it is under current law,” Schmidt told lawmakers this past week.

Kansas Association of Broadcasters President Kent Kornish said in written testimony said the bill will help ensure open records and open meetings laws are taken seriously.

But the League of Kansas Municipalities expressed concerns about a portion of the legislation that would require public agencies to pay for the costs of investigations into violations. They said the requirement could suppress some agencies from taking their cases to court if they believe they have done nothing wrong.

“We believe the current standard, requiring attorney fees if the court finds the public agency did not act in good faith or without a reasonable basis in fact or law, is sufficient and should remain law,” Nicole Proulx Aiken, legal counsel for the League, told the committee.