Kansas governor puts teeth into open-records law

Tuesday, May 16, 2000

A roundup of recent court cases, legislation and disputes involving public records.

TOPEKA, Kan. — Gov. Bill Graves signed legislation yesterday that for the first time imposes penalties against those who violate the Kansas Open Records Act. Under the new law that takes effect July 1, state and local government officials who violate the Open Records Act will be subject to fines of up to $500. Previously, there were no penalties. The new law also will give the attorney general's office and local prosecutors authority to subpoena individuals and records when someone complains about being denied access to public records. Graves had wanted an information officer in the attorney general's office to handle questions and disputes about open records. But lawmakers opted for each governmental body to have an information officer to handle such requests.

Also, under the new law, all 44 exemptions to the Open Records Act will be eliminated on July 1, 2005, unless the Legislature votes to save them. A legislative committee this summer might study which exemptions should be kept. The House passed the legislation first, but only after it added numerous amendments that supporters said did more to deny access to public records than open the process. The House version was dumped by the Senate, which drafted a new version with the help of interested parties, including the Kansas Press Association and League of Kansas Municipalities. The new law was prompted in part by publication in November of a survey by 19 Kansas newspapers on open-records compliance. Reporters sought records from government agencies in all 105 counties. Agencies denied 34 of 420 requests. But with more than half of the requests, officials demanded more information from the people requesting the records than required by law. Associated Press

Missouri: Doors slammed on tougher sunshine bill

JEFFERSON CITY — State Auditor Claire McCaskill said it was like a “gut punch” when state Sen. Sarah Steelman stood up and killed a bill aimed at tightening Missouri's Sunshine Law. At 5:30 p.m. on May 12, with half an hour left in the legislative session, there was still time to pass the bill sponsored by state Sen. Joe Maxwell, D-Mexico. That's when Steelman, R-Rolla, stood and said she would not allow a vote on the bill. Steelman said in an interview later that the bill was too lax on public hospitals, which would have been able to close many of their records. McCaskill, who listened from the side gallery, said May 13 that the moment ranked among her worst disappointments at the state Capitol. “It was really a gut punch when she stood up and said she would not allow a vote,” said McCaskill, a former state legislator.

The last version of the bill would have increased the maximum fine for public officials who “knowingly” violate the Sunshine Law by tenfold to $5,000. For all others breaking the law, even unknowingly, the penalty would have been capped at $500. Under current law the maximum $500 fine is for “purposeful” violations. Also included in the bill were some concessions for public hospitals. The Missouri Hospital Association fought hard for the exemptions, saying they were necessary to compete with private, for-profit hospitals. Public hospitals, now subject to broad disclosures, would have been able to keep most contracts secret until 18 months after they go into effect. Hospital expansion plans also could have been negotiated behind closed doors — but only if officials provided a 30-day period for public scrutiny before voting to spend public money.

“The documents were all going to become public,” McCaskill said of the hospital provisions. “It was just a matter of when they were going to become public.” McCaskill said if Steelman had truly been familiar with the bill, she would have known it was “one tough bill in terms of keeping the government open for the people who pay for it.” The last bill was a compromise negotiated through a series of talks between lawmakers and lobbyists for hospitals, local governments and the Missouri Press Association. This year's effort was prompted in part by a recent audit in which McCaskill's office found that nearly half of Missouri's governmental agencies weren't complying with the law. Associated Press

Colorado: Columbine killers' families ask judge to keep evidence private

GOLDEN — Dylan Klebold's parents have joined Eric Harris' parents in asking a Jefferson County judge to keep private any items seized from their home after the Columbine High killings. The Klebolds and the Harrises want to intervene in a lawsuit filed by the families of slain students Daniel Rohrbough and Kelly Fleming against Jefferson County Sheriff John Stone. Citing Colorado's open-records law, the suit seeks information on evidence gathered in the Columbine investigation. Sue and Tom Klebold say they are unsure what was seized from their home on April 20, 1999. That's the day their son, Dylan, along with Harris, stormed Columbine and killed 13 people. The sheriff's office has amassed so much information the family is worried that some of their personal items could be released to the public, said Gregg Kay, the Klebolds' lawyer.

So far, District Judge Brooke Jackson has released several hours of KCNC-TV videotape shot from a helicopter during the attack and a Littleton Fire Department training tape. The sheriff's office also released its final investigative report yesterday under Jackson's order. Releasing any more information could violate the Klebolds' privacy rights and may adversely affect the family in the civil lawsuit filed against them by the family of Isaiah Shoels, who was killed in the shootings, said the motion filed late last month. “We'd like to be able to provide the judge with our client's position before he makes a decision,” Kay said. County Attorney Frank Hutfless said through a spokeswoman that he hadn't yet seen the motion and couldn't comment. Wayne and Kathy Harris, also in a motion filed late last month, said they wanted to know about any items taken from their home before that information was released to the public. Releasing such personal information could violate the Colorado Constitution's provision on unlawful takings, the motion said. Associated Press

New York: Diallo judge right to seal files, state appeals panel says

ALBANY — The judge in the trial of four New York City police officers charged with murder in the slaying of Amadou Diallo properly denied the news media access to pretrial records “at a crucial time” — just before jury selection — a state appeals court panel has ruled. However, the five-member panel of the Appellate Division of the state Supreme Court acknowledged that Justice Joseph C. Teresi could have made the records public after risks of excessive pretrial publicity had passed. The court also dismissed a petition several news organizations brought against the judge, saying the issue is now moot because the records will be made public along with the trial documents that Teresi ordered unsealed after the officers were acquitted of murder and other charges in February.

Appellate Division Justice Thomas Mercure, writing for the panel on May 4, said “it cannot be doubted” that release of the documents sought by reporters “would have generated considerable media attention on irrelevant and prejudicial information at a crucial time.” The impact of such information during jury selection in Albany County, which had a smaller jury pool than the Bronx, “would be at its greatest,” Mercure said. The news organizations had wanted to see documents that included the white officers' personnel records and previous complaints lodged against them, as well as tapes and transcripts of interviews with witnesses to the February 1999, shooting of Diallo, a West African immigrant, in the Bronx. The documents were presented by both the prosecution and defense during a Dec. 29, 1999, closed pretrial session held by Teresi.

It had already been reported that three of the four officers were involved in other shootings on the job — all of which were deemed justified. Because of large-scale public protests that racism was a motive for the Diallo shooting, there was great interest in information about the officers' records. The pretrial hearing had not been announced to the public and when a New York Daily News reporter learned it was under way and asked to be admitted, the journalist was denied. While transcripts and personnel records are no longer in the court's possession, the records of attorneys' motions were sent to the Albany County courthouse after the May 4 decision. “We're pleased that after a long and unwarranted delay the motion papers are being released to the public,” said David Schulz, an attorney for the Associated Press.

The appellate court alluded to that delay, but blamed it on the news media itself for not proposing unsealing of the documents after jury selection had been completed. Schulz said on May 4 that the news organizations had, in fact, sought an alternative arrangement. The AP, New York Daily News, Newsday, the New York Post, The New York Times, the Albany Times Union, the New York Law Journal and Clear Channel Communications Inc., challenged Teresi's actions in the Diallo case. Associated Press

New Jersey: Advocacy groups join assemblyman to support public-access bill

TRENTON — A wide range of public interest groups last week backed a state assemblyman's bill to open public records and called on Gov. Christine Whitman to get behind the measure. The measure, which would require all levels of government in the state to make records available to the public, was approved unanimously by an Assembly committee in March. The bill's sponsor, Assemblyman George F. Geist, said the measure has bipartisan support, but it has not been posted by Assembly Speaker Jack Collins, R-Salem, for a vote. Geist said there is “no question” he has the votes to support the bill in the Assembly. “We could vote on this in the next Assembly session,” Geist said.

A Senate version has been held while the attorney general's staff reviews the legislation, he said. The attorney general was concerned that the bill would require law enforcement agencies to reveal sensitive information about criminal investigations. Administrators at state-run colleges have also objected to the Senate bill. Additional public access, they say, would compromise faculty research and damage their ability to appeal for contributors by forcing them to publicize donor names. Representatives of the attorney general's office and the state-run colleges failed to attend a meeting May 11 to resolve differences with bill sponsor state Sen. Robert J. Martin. They cited scheduling problems for missing the meeting.

Supporters said the measure would bring New Jersey in line with public access laws in other states. “We are no longer going to tolerate our second-class citizenship,” said Harry Pozycki, chairman of Common Cause of New Jersey. “We are tired of New Jersey being a hidden government.” Other groups joining Common Cause included the New Jersey chapters of the Society of Professional Journalists, Citizen Action and the Public Interest Research Group. Associated Press/The (Bergen County, N.J.) Record

Kentucky: Public-records charges can't be excessive, says state attorney general

FRANKFORT — The charge for copies of public records, except in those instances where there is a statutory fee schedule, cannot be excessive and exceed the cost of production, said the state attorney general in an opinion issued last week. The Carter County clerk's office had attempted to charge $1 per page for copies of deeds, which the attorney general's office said was too much. The May 8 opinion, which carries the force of law in cases involving the Open Records Law, said the statutory fee schedule for other official copies supersedes the general restrictions of the records law. Assistant Attorney General Amye Bensenhaver said certified copies of items such as deeds can cost $5. But when there is not a specific fee allowed by law, the records law dictates the charge can be no more than the actual cost of the copying excluding the staff time. Bensenhaver said the courts have opined that 10 cents a page is a reasonable fee. Associated Press

Georgia: Putting court records on Internet raises privacy concerns

MARIETTA — Placing court records on the Internet has created concerns about privacy rights among lawyers, judges and court administrators. With a new Superior Court computer system, Cobb County officials say they are the first in Georgia with the technology to go online with a full array of documents from criminal and civil cases. But Chief Judge Robert E. Flournoy Jr. has signed an order barring certain documents — including financial affidavits, documents filed in divorce cases and orders requiring the payment of child support — from being put on the Internet. The information is still available in the case files in the clerk's office and in the internal computer system.

“We just felt that they should not be available on the Internet, where people would be able to find out about their neighbors,” Flournoy said. Advocates of open records disagree. “There is no reason to treat records differently just because they are available in a different medium. Material that is not meant to be disclosed is not released by the court when there are real dangers,” said Gregg Leslie, an attorney for the Reporters Committee for Freedom of the Press in Arlington, Va. Realizing that the debate has begun, a statewide group of court officials is wading into the issue. The Georgia Task Force on Internet Policy is studying what documents should be on the Internet, as well as the larger question of what should be included in court files in the first place, said Linda Pierce, chief clerk of court in Muscogee County and chairwoman of the group. The committee may make recommendations to the Georgia Supreme Court this summer.

When Cobb County prepared to go to the new computer system, Clerk of Court Jay Stephenson realized it would be virtually impossible to keep information such as Social Security, bank account and credit card numbers off the Internet because of the heavy volume of paperwork that is filed. Stephenson met with representatives of the county Bar Association and the district attorney's office to figure out a way to give the public access to court documents while still protecting privacy. Flournoy signed his order in March. Since then, computer consultant Main Line Corp. has been working on a program that will filter out the sensitive documents. The program is expected to be ready in a few months. Associated Press

Florida: Measures to limit public access to records go by with little notice

TALLAHASSEE — At the end of the Legislature's 60-day session, Florida's open-records laws generally stayed that way. Only one bill was sent to Gov. Jeb Bush that would significantly close the public's access to information, an open-government advocate said. Under state law, there must be a proven necessity to keep records private — a standard which several bills did not meet, said Barbara Petersen, executive director of the First Amendment Foundation in Tallahassee. “Going into this session, there were so many insidiously bad bills,” she said. “But during the session, there was a sincere attempt to make sure these bills were given serious constitutional scrutiny.” The measure that could have the most far-reaching effect in closing public records, Petersen said, would shield some documents about investigations of venture capital firms. House Bill 439 would allow venture capital firms to decide if documents sent to investigators should be kept confidential. In addition, it would allow the addresses of state regulators investigating venture capital firms to be kept secret. Supporters said the secrecy is necessary to keep companies' financial and tax records out of the public's reach for competitive reasons.

Some bills which caused the most concern before the session never reached the governor. One measure would have exempted from public scrutiny doctors' disciplinary histories at the hospitals where they practiced, reports on mistakes that doctors make in office settings and legal notices about pending malpractice suits. Another bill that did not reach the governor would have closed public records in investigations of politicians. State prosecutors contended when someone comes forward with a corruption allegation, they need to keep the file closed even if they can't gather enough evidence to bring charges. They argued it would keep informants' names secret and protect whistleblowers from retaliation. The proposal would have allowed such records to remain closed for three years. But open-government advocates said there are already such protections for informants in the law, and that normally when a member of the public is accused of something and the case is closed, the accusation becomes public record. The bill passed in the Senate unanimously, but was never taken up in the House. Associated Press