Kansas Legislature sends tougher open-records bill to governor

Monday, May 1, 2000

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

TOPEKA — A Kansas Open Records Act that packs a little more punch is awaiting Gov. Bill Graves’s signature. The legislation, worked out by House and Senate negotiators, was sent to the governor’s desk April 29 after the House approved it 123-2 and the Senate endorsed it 40-0. Graves, who proposed similar legislation at the start of the session that ended April 29, said he would sign the bill. The version that went to the governor for the most part was written by the Senate, which junked the House version (House Bill 2864) that critics said would have restricted access to public records. House and Senate negotiators crafted the compromise with input from opposing sides, including the Kansas Press Association and the League of Kansas Municipalities. Despite its involvement, the league still didn’t think much of the final version. “We’re going to live with it. We always believed education was the only thing that was really needed,” said Don Moler, the league’s executive director.

Under the bill, officials who violate the state Open Records Act would be subject to fines of up to $500. Currently, there are no penalties for violations. The bill also gives the attorney general’s office and local prosecutors authority to subpoena individuals and records when someone complains about being denied access to public records. The bill also eliminates all 44 exemptions to the state Open Records Act on July 1, 2005, unless the Legislature votes to save them. The bill’s sponsor, Rep. Carlos Mayans, says he wants a legistative committee this summer to study which exemptions should be kept. The bill was prompted in part by publication last 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 requests, out of 420 requested. But with more than half of the requests, officials demanded more information from the people requesting the records than required by law. Associated Press

Texas: State attorney general, editor endorse public’s right to access records
IRVING — Public officials throughout Texas are learning they must divulge public information promptly or face legal consequences, Texas Attorney General John Cornyn said April 29. “No one will get away with thumbing their nose at the (state) Public Information Act,” Cornyn told the Texas Associated Press Managing Editors convention. Cornyn, a former Texas Supreme Court justice who was elected attorney general in 1998, said his office is stepping up enforcement of the state’s open-records law and is decreasing the time it takes to issue an attorney general’s ruling on the law. Before he took office, Cornyn said, only 4% of rulings were issued in 20 days or less. Now 36% of rulings are issued in less than 20 days.

Cornyn said he is aggressively cracking down on alleged open-government violations. He noted that last month his office sued the Stephenville School District over the release of public records. The lawsuit alleged the school district released only edited copies of its legal bills even though Cornyn’s office had ruled the public was entitled to all information in the bills. The school district cited concerns that releasing the information could violate the confidentiality between an attorney and client. “I will always fight for your right to collect and report accurate information,” Cornyn told the AP managing editors. “I am an unabashed advocate for open government.” Many times, he said, open-records violations result from ignorance of the law rather than malice. Cornyn’s office is holding seminars for public officials to educate them about public information, he said.

Speaking yesterday at the final session of the convention, Donnis Baggett, editor and publisher of The Bryan-College Station Eagle, said Texas lawmakers likely would not be inclined to tinker with open-meetings legislation next session because of the focus on redistricting. Nevertheless, editors should be vigilant about efforts to restrict access to public information, he said. He added that most legislative attempts try to make it harder for the public to learn about activities of elected and appointed public officials. Lawmakers will convene in January for the biennial session, and Baggett cited organizations like the Texas Municipal League, the Texas Association of School Boards and the state association of county district attorneys as groups lobbying for greater restrictions. He also noted some House committees already are planning to study keeping names, addresses and telephone numbers of people private. He said the issues would never go away, and grassroots involvement by newspapers across the state “is absolutely essential if we’re going to keep the wolf away from the door.” Associated Press

Alabama: State FOI center formed
TUSCALOOSA -—A state center has been formed to assist citizens in getting access to public records, information and meetings of government officials at all levels in Alabama. The organization, Alabama Citizens for Open Government, was incorporated this month and is co-chaired by Edward Mullins, chairman of the journalism department at the University of Alabama, and Ron Sawyer, publisher of The Tuscaloosa News. Center officials said in a news release April 26 that about half the states now have such a statewide freedom-of-information organization. Sawyer said the center will be housed temporarily in the university’s journalism department and will hire an executive director. It seeks a broad-based membership and has initial goals of raising operating funds and getting information to the public, news media and government officials through a newsletter and Web site. Associated Press

California: Assembly panel rejects computerized records bill
SACRAMENTO — A bill to make it easier for reporters and the public to obtain computerized government records was rejected last week by an Assembly committee. The bill, similar to measures vetoed by two governors, received a 7-3 vote on April 24, one vote short of the majority needed in the 15-member Governmental Organization Committee. However, the author, Assemblyman Kevin Shelley, D-San Francisco, asked that a second vote be conducted at a future committee meeting. The state Public Records Act requires state and local government agencies to provide the public with copies of its records. The bill would require agencies that keep their records on computer to provide them in an electronic format when requested. Similar bills passed by the Legislature were vetoed in 1997 by former Gov. Pete Wilson and last year by Gov. Gray Davis. Wilson said agencies received hundreds of records requests every month and specifying the format would increase costs. In his veto message, Davis said the bill was “well intentioned,” but many state computer systems could not comply with it without compromising confidential material. Supporters of the bill include the California Newspaper Publishers Association and the First Amendment Coalition. Associated Press

Wisconsin: Governor signs personal privacy bill
WATERTOWN — Gov. Tommy Thompson has signed a law allowing people to prevent their names, addresses and telephone numbers from being sold in bulk to telemarketing firms by three state agencies. Individuals renewing their driver’s licenses, or registering for fishing, hunting or occupational licenses can check a box to keep state agencies from selling their information in batches of 10 or more. The law signed April 24 makes it harder for businesses to get information from the Transportation Department, Department of Natural Resources and Department of Regulation and Licensing – but it is not an outright ban on releasing it, state Sen. John Erpenbach said. Previously, the state Department of Transportation gave residents the option to be removed from the lists that were sold, but individuals had to request and complete a separate form. Now license applications will have the “opt out” box printed directly on the form. Erpenbach said residents who check the option will be less likely to be contacted by telemarketers. While the bill prevents telemarketing firms from gathering information from the three state agencies, it still allows others, such as news media, access under the state’s open-records law. Associated Press

Wyoming: Advocates say settlements should be public record
CHEYENNE — The state’s settlement of two lawsuits filed after four foster children were placed with a child molester should be publicly available, advocates for open records say. The suits were brought by the children in northeast Wyoming after the state Department of Family Services placed them with Homer Griswold in Newcastle and Gillette. The lawsuits argued the department should have known Griswold had a history of sexual harassment and abuse allegations leveled against him. Griswold is now serving 10 life terms for second-degree sexual assault. “I believe it is contrary to the public policy as described in the (Wyoming) Public Records Act and the Open Meetings Act to have settlement agreements involving governmental bodies be secret,” said Bruce Moats, a Cheyenne attorney. In 1997, the Colorado Supreme Court said such secret agreements vilated public policy, he said.

Although the threat of exposure “might chill” the government’s ability to settle lawsuits, Moats said he has seen nothing in the state Public Records Act that prevents public viewing of the agreements. However, there does not appear to be any case law in Wyoming that supports opening such agreements, Moats said. Jim Angell, executive director of the Wyoming Press Association said he did not like the idea of keeping the settlements confidential. “The state may be spending millions, it may be spending billions, and we’ll never know it,” Angell said. It is particularly galling because state officials appear to have performed poorly and will not have to publicly disclose their punishment, he said. Associated Press

Arkansas: Prisoner entitled to hearing on access to logs, state Supreme Court says
LITTLE ROCK — A woman serving a life sentence for capital murder is entitled to a hearing on whether prison library logs are public records, the Arkansas Supreme Court said April 20. Mary Lee Orsini, convicted of the 1982 death of her lawyer’s wife, made a Freedom of Information Act request to the supervisor of the law library at the McPherson Unit. She wanted a copy of the law library log containing the names of people who used the library during a seven-day period in March 1998. The request was denied, and Orsini appealed to the Jackson County Circuit Court. The lower court dismissed the appeal, and Orsini appealed that decision to the state Supreme Court. “The (state) Freedom of Information Act was passed wholly in the public interest, and it is to be liberally interpreted to the end that its praiseworthy purposes may be achieved,” the high court said. “Viewing the facts in the light most favorable to (the) appellant, the record indicates that the library logs in question were being kept or maintained by the prison to monitor the use of the library.”

The high court said the library logs would fall under a section of the state FOIA that says all records maintained in public offices or by public employees within the scope of their employment shall be presumed to be public. The state Supreme Court said the circuit court should hold a hearing to determine whether Orsini was denied access to the records in question or whether an exemption applies to exclude the records from public inspection. In March, the high court ordered the Jefferson County Circuit Court to conduct a hearing for Orsini who argued that she was improperly denied documents for her defense in a prison disciplinary hearing. Associated Press