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Clark v. Unified School District No. 287

Court of Appeals of Kansas

March 9, 2018

Eric Clark, Appellant,
v.
Unified School District No. 287, Appellee.

         SYLLABUS

         1. Once 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).

         2.There 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 Supp. 45-221(a)(14).

         4.School boards have the statutory authority to control access to their facilities.

         5.Aletter 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).

         6.An individual is not entitled to recover damages against a public agency for violation of the Kansas Open Records Act.

         7.There 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.

         8.When 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.

         Appeal from Franklin District Court; Eric W. Godderz, judge. Opinion filed March 9, 2018. Reversed and remanded with directions.

          Eric S. Clark, appellant pro se.

          Lauren E. Laushman and J. Steven Pigg, of Fisher, Patterson, Sayler & Smith, L.L.P., of Topeka, for appellee.

          Before Arnold-Burger, C.J., Buser and Schroeder, JJ.

          Arnold-Burger, C.J.

         The 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).

         Eric 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 from disclosure.

          Clark 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.

         Factual and Procedural History

         The facts of this case are not in dispute. But first, a bit of background is in order.

         Clark 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.'"

         According 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.

         After the newspaper article was published Clark filed a series of KORA requests with the School District. The particular requests that are at issue ...


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