By MAX KAUTSCH
Courtesy Kansas Reflector
Dear attorney general-elect Kris Kobach:
Congratulations on your election as our state’s next attorney general.
I write this open letter in my capacity as the president of the Kansas Coalition for Open Government. My purpose is to express my hope for establishing a working relationship between the coalition and your administration to achieve what I believe to be a shared goal: educating the public about the importance of transparency at all levels of Kansas government.
Transparency is vital. For example, it is how family members of crime victims learn about what happened to their loved ones. A lack of transparency is why there was such an uproar over unknowns about how taxpayer dollars were leveraged during the Panasonic plant negotiations. Transparency is, at its heart, the ability of members of a democracy to challenge or verify what the government tells us.
As you know, the Attorney General’s Office plays a critical role in promoting transparency in the state. Under Kansas law, the office is afforded more authority than any other entity to investigate and act on complaints made by members of the public that a public agency has violated the Kansas Open Records Act or the Kansas Open Meetings Act, such as when an agency denies access to a record that should have been available or a has a meeting behind closed doors that should have been open.
Although county and district attorneys, as well as members of the public, have authority to bring civil lawsuits to enforce open government laws, only the Attorney General’s Office has authority to enter into a “consent decree” with the offending agency or issue a “finding of violation” against such agency to resolve the complaint.
Your predecessor, who worked with legislators to pass the bill conferring these additional powers on the office in 2015, established an Open Government Enforcement Unit within his office that was effectively the sole arbiter of open government law in this state for the latter half of his tenure.
Now, Kansans have given you the responsibility to serve as the state’s primary enforcer of open government laws. With that responsibility comes broad investigatory and enforcement authority, including the ability to issue subpoenas to public agencies to enforce open meetings laws.
But I think we can agree that the most important component of effective open government law enforcement is education.
Your predecessor routinely offered open government training sessions for public employees and officials, the news media, and members of the public. Not only do such sessions help prevent public agencies from violating open government laws, but they also serve as a constructive way to resolve complaints because the office can order officials to remedy certain violations by attending.
To whatever extent the Attorney General’s Office under your leadership welcomes assistance in offering and developing such education, the coalition is happy to help. Our organization, a 501(c)(3) nonprofit formed in 1999, has provided open government training sessions, sometimes in partnership with the office, for more than two decades.
We offer a wide variety of open government education resources on our website, including KORA and KOMA training slides based largely on outlines of open government laws written by your predecessor.
Finally, for many years, the Attorney General’s Office and the Kansas Coalition for Open Government worked together to offer KORA and KOMA training. But that practice was suspended for a variety of reasons, not the least of which was your predecessor’s selective application of the plain language of KORA. It is my hope, despite past differences, that your administration recognizes the benefit of our shared history and would be willing to discuss how we might resume working together to serve the public interest during your term.
I can be reached at [email protected]. I wish you the best of luck as you prepare to take office, and I hope to hear from you soon.
Max Kautsch, licensed to practice law in both Kansas and Nebraska, focuses his practice on First Amendment rights and open government law. He helps news media and members of the public assert rights of access to court proceedings, court records, and government agency documents. He serves as the legal hotline attorney for the Kansas Press Association and the Kansas Association of Broadcasters, is president of the Kansas Coalition for Open Government, and is an adjunct professor at the University Kansas School of Law. Kautsch is also hotline counsel to both the Nebraska Press Association and the Nebraska Broadcasters Association.