access to a record is requested under the Kansas Open Records
Act, the entity receiving the request has three business days
to respond. If access is not granted within three days, the
custodian must explain the cause for the delay and the place
and earliest time the record will be available. If the
request is denied, the custodian must provide-upon
request-the specific statutory grounds for denial of access.
This must be provided within three business days of the
request for a statutory explanation. K.S.A. 45-218(d).
are some records that a public agency is not required to
disclose. The statutory exceptions to mandatory disclosure
are to be narrowly interpreted, and the burden of proving
that the exception applies is on the public agency opposing
disclosure. In general, the Kansas Open Records Act does not
prohibit disclosure of records contained within
these exceptions but makes their release discretionary with
the agency's official records custodian.
3.Correspondence between a public agency and a private
individual is not subject to mandatory disclosure unless the
correspondence is intended to give notice of an action,
policy, or determination relating to any regulatory,
supervisory, or enforcement responsibility of the public
agency or which is widely distributed to the public by a
public agency and is not specifically in response to
communications from such a private individual. K.S.A. 2017
boards have the statutory authority to control access to
from a school board putting an adult on notice that he or she
is banned from school district property is not exempt from
disclosure under K.S.A. 2017 Supp. 45-221(a)(14).
individual is not entitled to recover damages against a
public agency for violation of the Kansas Open Records Act.
is no substantive difference between the phrase "not in
good faith" as used in K.S.A. 2017 Supp. 45-222(d) and
(e) and the term "bad faith." Both mean dishonesty
of belief, purpose, or motive.
costs are assessed against either a plaintiff or a defendant
under K.S.A. 2017 Supp. 45-222, the court must make specific
findings of fact regarding the reason for the assessment and
the facts upon which the court based its conclusion that the
actions were not in good faith.
from Franklin District Court; Eric W. Godderz, judge. Opinion
filed March 9, 2018. Reversed and remanded with directions.
S. Clark, appellant pro se.
E. Laushman and J. Steven Pigg, of Fisher, Patterson, Sayler
& Smith, L.L.P., of Topeka, for appellee.
Arnold-Burger, C.J., Buser and Schroeder, JJ.
Kansas Open Records Act (KORA) requires public agencies to
respond to requests for public records within three business
days. K.S.A. 45-218(d). A public agency can either provide
the record, explain when the record will be available and the
reason for delay, or deny the request. K.S.A. 45-218(d).
Clark made a KORA request for a letter that Unified School
District No. 287 (School District) sent to Gene Hirt
informing Hirt that he was no longer allowed on school
property. The School District denied the request, citing an
exception to the KORA that allows it to refuse to disclose
correspondence between a public agency and a private
individual as long as the correspondence is not intended to
give notice of an action, policy, or determination relating
to any regulatory, supervisory, or enforcement responsibility
of the public agency. The district court agreed that the
letter was protected from disclosure under this exception.
But school boards have a statutory duty to regulate their
property. Because the letter provided notice to the patron of
an action that the School District was taking pursuant to its
regulatory authority to control access to its property, it
was an open public record under the KORA. Accordingly, we
find that the district court erred in shielding the letter
also made a KORA request for policies related to the School
District's power to take disciplinary action against
nonstudent members of the public. The School District did not
fulfill this request within three business days, and so the
district court held that the School District violated the
KORA. After finding a violation, the district court awarded
costs and damages to Clark. Because we find that the KORA
does not authorize damages, the damages award was in error.
Furthermore, in order to award costs the district court was
required to find that the School District acted in bad faith.
Because there was no such finding by the district court and
there was not substantial evidence presented to support a
finding of bad faith, we find the district court erred in
awarding costs to Clark as well.
and Procedural History
facts of this case are not in dispute. But first, a bit of
background is in order.
asserted in one of his pleadings in this case that on June
13, 2015, at the conclusion of a School District Board of
Education meeting, Gene Hirt identified the superintendent as
a "'dork.'" According to an article
published in the Ottawa Herald on July 21, 2015, Hirt was
subsequently sent a letter from the Board informing Hirt that
"'after [his] rude and uncivil behavior following
the June 13, 2015, USD 287 Board meeting, you will no longer
be allowed on USD 287 property for any reason or under any
circumstances.'" The newspaper went on to quote the
letter, provided to it by Hirt, as stating, "'Your
inability to express yourself in a civil and socially
acceptable manner has brought about this action by the Board
of Education of USD 287. Should you be found on USD 287
property at any time hereinafter the Franklin County
Sheriff's Office will be notified and asked to remove you
from school property.'"
to his pleadings, Clark became concerned about what was meant
by the School District's requirement that one behave in a
"'socially acceptable manner.'" Clark was
"prone to identify the superintendent as a
'nincompoop' which arguably could tend toward being
even more of a manner disruptive or disturbing to the normal
educational functions of the school than would be an
identification of 'dork.'" He asked for
clarification at a subsequent Board of Education meeting and
also made an open records request to determine the contents
of the letter and the source and meaning of the policy.
the newspaper article was published Clark filed a series of
KORA requests with the School District. The particular
requests that are at issue ...