City Manager Denies Newspapers, Public Access To Commission E-Mail

By Jon A. Brake

The first thing to remember is that the City of Manhattan has a very good staff and the new City Commission is responding to the citizens of Manhattan. But, the system needs just a little twinking (Movie: "You've Go Mail").

The City Manager and staff from time to time will send e-mails to all oft the Commissioners. This according to the Kansas Attorney General could be considered an Open Meeting under the Kansas Open Meetings Act. Not so says City Manager Ron Fehr.

At this time the press and interested citizens are not receiving e-mails. Not all e-mails could fall under the Law Exemptions. It would seem that some or all would be sent out to the press. What do you think? Read the Attorney General's Opinion to the left and then read Mr. Fehr's letter below:

Dear Mr. Brake and Mr. Seaton:

Thank you for each of your e-mails on Friday, June 8, in which you both request, on behalf of your respective newspapers, to be copied with e-mails that I provide to City Commissioners. I assume your requests are asking that I provide you with copies of any future e-mails that I send to three (3), or more, commissioners. If my assumption is incorrect, please provide me with further information about your requests.

Since Mr. Brake made the original request, my responses are primarily directed at his e-mail, but they are intended to respond to Mr. Seaton as well.

You suggest that you are making your request under the Kansas Open Records Act (KORA) and the Kansas Open Meetings Act (KOMA). As I am sure you understand, the KOMA has very little to do with the "openness" of public records. Whether or not records of the City of Manhattan are mandatorily disclosable is governed solely by the KORA. It has been, and continues to be, the position of the City of Manhattan that KORA does not permit a "standing" request for future records. Therefore, your request for future e-mails is not appropriate under either KOMA or KORA.

If you have a specific request for records that you believe are in existence, and in the possession of the City, we will be more than happy to respond to that request, pursuant to KORA. As you know, we routinely provide both of you with numerous documents you request. In fact, we have provided you with copies of past e-mails that you have requested, when appropriate. I believe our staff has been very cooperative and responsive in not only providing you with copies of various documents, but also going above and beyond by providing it in a variety of formats (digital, etc.). I am also aware that our staff has compiled or tabulated information to meet your requests when specific existing records do not exist.

Of course, any request for records is subject to denial, if any of the exemptions provided by KORA are applicable. Mr. Brakeís email of Friday, June 8, quotes exemption 21 from the Act. There are a total of 45 exemptions under the Act. Sometimes more than one exemption applies. If any exemption applies, the record is not mandatorily disclosable. Mr. Brakeís e-mail seems to imply that my e-mails to Commissioners are mandatorily disclosable because exemption 21 provides that such exemption is not applicable to records "...distributed to a majority of a quorum of any body....". I would agree with Mr. Brake, if exemption 21 was the only applicable exemption to a record, that once that record was distributed to three (3) Commissioners, the record would be open. Unfortunately, since you have not asked for a specific record that currently exists, I cannot tell you whether exemption 21 applies to your request at all, and I certainly cannot tell you if it is the only exemption that applies. I can tell you that any e-mail that expresses opinions, or proposes policies or actions, would also be exempt under exemption 20, until that specific e-mail was cited or identified in an open meeting or in an agenda of an open meeting. Simply distributing such an e-mail to three (3), or more, Commissioners would not make it open, even if it "pertained to proposed legislation".

Apparently, Mr. Brake believes that the Attorney Generalís opinion from 1998, regarding KOMA and involving what she described as "serial meetings", has some bearing on his request. As I indicated above, KOMA has very little to do with a records request, and I do not believe the Attorney Generalís opinion suggests anything that relates to the "openness" of records. Even if the Attorney Generalís opinion is taken as correct, there is nothing about my sending e-mail to three (3) or more Commissioners which constitutes a "meeting" under KOMA. Even the Attorney Generalís opinion requires more than my one-way communication to the Commissioners to create a meeting. Therefore, Mr. Brakeís reliance upon the Attorney Generalís opinion and KOMA to suggest the "openness" of my e-mails is misplaced.

Mr. Seaton, by his e-mail, seems to agree with the Cityís legal position, but suggests we should provide copies of the e-mails because it is the "right thing to do". The City is committed to openness in government. The City believes that timely, and appropriate, responses to records requests and compliance with both the letter and spirit of the Open Meetings Act are priorities. That having been said, there are valid reasons to allow the City Manager to have frank discussions, including written communications, with members of the City Commission, without those discussions being public. That is the reason for the exemption under KORA that permits opinions and suggestions of policies to be made without public review, until they are a part of an open meeting. I appreciate the media may have a different perspective. I believe our general practice of providing complete agenda packets at no cost to the media, typically five days in advance of a legislative agenda, provides very good notice of proposed actions to be considered by the City Commission. Often these legislative issues have been considered in some public setting prior to City Commission action as well.

I hope this response explains the Cityís position on your request. If you have questions, please feel free to contact me.

Sincerely,

Ron R. Fehr

City Manager