FOR IMMEDIATE RELEASE Contact:Paul Soutar

May 29, 2009

(316) 634-0218

Determination and Preparations for a Lawsuit SlowlyExtract Public Data

Seven weeks after the original request, Saline County’s appraiser, under pressure from an impendinglawsuit, delivered some of the property tax data sought by the Flint Hills Center for Public Policy from allKansas counties. As of May 29, 44 of 105 Kansas counties have not provided all the requested data.What started out as research into property valuations in Kansas has turned into a frustrating protractedbattle over differing perspectives on open government. Denials and delays have slowed or preventedexamination of government fiscal policy as budget and taxation issues were being addressed in thelegislature. Access was further frustrated by decades-old computer technology.Open government laws like the federal Freedom of Information Act (FOIA) and the Kansas OpenRecords Act (KORA) are designed to ensure citizens have access to government information and arean important aid in maintaining citizen control of government.One of the issues cited by Saline County and others is whether a county can legally withhold 2009appraised totals until all taxpayer appeals have been processed. Ellen Mitchell, in a May 20 e-mail toFlint Hills, said, “The records will be available in a short period of time. A lawsuit to compel seems to bea waste of time, money and judicial resources at a time we need to be conserving money andresources.”Flint Hills’ president Dave Trabert responded that, “a lawsuit to compel government to release publicinformation is, in my mind, time and money well spent.” More than half of Kansas counties had alreadyprovided all the data requested and Flint Hills is receiving more data each day.“If that’s what it takes to force government agencies to uphold their duty for openness and transparencythat’s an unfortunate thing,” said Caleb Stegall, attorney for Flint Hills.Saline County and others also insisted that their open records form must be completed. Trabert refusesto do so, saying that everything the county is entitled to receive has already been submitted in writing.“Other counties initially raised the same issues but most accepted our explanation and have eithersubmitted the information or are in the process of doing so,” said Trabert. “I’m told that SumnerCounty’s attorney is doing research to reply to our open records request.”

NVESTIGATIVE

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Flint Hills e-mailed requests to appraisers for 104 Kansas counties on April 15, 2009. (Sedgwick Countywas already gathering the data and didn’t require a written request). Initial replies ranged from full andspeedy fulfillment to no reply at all. In a few cases the reply was the equivalent of saying "go away,"according to Trabert.As of May 29, more than a month later, 61 have provided full data, 34 sent partial data and 8 say theyare collecting the data. Comanche County has still not responded to e-mails and phone messages.Saline County Appraiser Rod Brodgerg had not responded to a request for the remaining data as of thiswriting. Trabert says he is hoping that lawsuits are not necessary to force compliance by the 44counties that have not submitted complete information, but is fully prepared to do so.KORA allows three business days to respond to, though not necessarily fulfill, a request. The law says,"public records shall be open for inspection by any person unless otherwise provided by this act, andthis act shall be liberally construed and applied to promote such policy."Unfortunately, citizens and journalists have broad experience with state and local government notabiding by the clearly-stated spirit or the more murky letter of the law. In a 1999 collaborative statewideaudit conducted by journalists and other open government advocates, about 85 percent of requestswere fulfilled but the audit also found significant problems. A

Wichita Eagle

reporter seeking a basiccrime report in Harper County refused to answer questions beyond what the law allows and was brieflydetained by sheriff's officers."If government only gets 85% of things right they deal with, that's pretty bad," said Randy Brown in arecent interview. Brown is the executive director of the Kansas Sunshine Coalition for OpenGovernment. "No business would tolerate that margin of error, and no government should."Jean Hays, deputy editor for news at the Wichita Eagle, says most of the paper's KORA requests arepromptly filled but there are still problems. "We do sometimes encounter reluctance of agencies torelease information or to release it in a timely manner. We disagree at times with some agencies thatbelieve KORA exempts some records."Flint Hills’ difficulty in obtaining timely information fell into several categories and point to broaderproblems with open government in Kansas.

Creating or accessing records

Governments subject to KORA are not required to create records, only to provide copies of records thatthey normally have. So if a citizen asks for several pieces of data that are on file but not normallycompiled into a report, the agency may refuse to deliver the data.Ellsworth County Counselor Joe Shepack refused to provide data in a summary format that was readilyavailable but offered access to thousands of individual parcel records from which the analysis wouldhave to be laboriously gathered. "I find it interesting that you have other counties which have the timeand personnel to create records for you," Shepack said. Ellsworth County received the free programthat would facilitate compiling the requested data.

Technology problems

Kansas county appraisers use a computer-assisted mass appraisal (CAMA) system to manageproperty appraisals. The system used by most counties, purchased in 1989 and based on 1975technology, stores data for only two years, current and previous. Any data older than the previous yearis stored outside the system and can only be reloaded into the system after the current or previousyear's data is removed.Some appraisers said this technological limitation made it difficult and possibly risky for them to retrieve

data that would allow an analysis of certain property value trends.Several appraisers figured out how to access the data on their own. The Harvey County appraisercontacted Manatron, their CAMA software support vendor, which provided a short program anddistributed it at no charge to the 79 Kansas counties it supports. Another software support companycharged Flint Hills a small fee for a similar program written for its nine Kansas customers. One of thosecustomers, Miami County, has thus far refused access to the data.Several Kansas counties have already switched to a newer appraisal system, Orion, which allowsarchiving and analysis of many years of data both by appraisers and through an online portal. Thesystem will allow each county to set the level of online access for the public.

Enforcement problems

A representative of the Kansas Attorney General’s office told Trabert the attorney general’s office cannot intervene in a complaint about a county’s lack of compliance with an open records request. A formalcomplaint can be filed with the county attorney, but if the complaint is denied the only alternative is tofile a lawsuit.

Fees charged exceed legal limits

Some counties asked for fees that exceeded the cost of staff time to provide the records. KORA permitsonly actual costs for staff time and copying to fulfill the request.Ellsworth County sets fees unique to its county for searching and copying public records in response toKORA requests:

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$10 to search for a readily accessible record in the county courthouse

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$30, plus an hourly fee of $30 beyond the first half-hour, to view a record stored at the countycourthouse

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$60, plus an hourly fee of $60 beyond the first half-hour, to access records stored outside thecounty courthouse

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$60 per hour if an elected official is required to travel in response to a KORA-related subpoena"There's no reason we should have to pay people to comply with the law or make exceptions to the law,Brown said. Many counties waived any fees to Flint Hills, and some of those initially requesting feeshigher than actual costs modified the charges after being made aware of the law.The Ellsworth County appraiser recently contacted Trabert and provided the data which the county'slawyer refused to provide.

Ignorance of the law

The original KORA request from Flint Hills referenced the Kansas KORA statute, but many of thecounty employees contacted seemed unaware of the specifics of the law. "I truly believe some of this isnot people trying to refuse public data but probably just not clear or certain of what the law says," saidTrabert.Some counties demanded use of their open records form that asked for more than the requester'sname, address and a description of the records requested, the only requirements under KORA.For example, Leavenworth County's form includes a space for the requester's employer and the reasonfor the request. The law says any citizen can access open records and that a "public agency mayrequire a written request for inspection of public records but shall not otherwise require a request to bemade in any particular form."Flint Hills refused to complete individual county forms on the basis that all of the legally permittedinformation had already been provided; all but Sumner and Ness counties have since withdrawn that