The Latest: BuzzFeed open to suing Kobach again

Judge: Kobach didn’t deny BuzzFeed request, lawsuit dismissed

A Shawnee County judge tossed a lawsuit from BuzzFeed against Kansas Secretary of State Kris Kobach alleging his office denied their open records request for emails containing immigration- and election-related terms.

A BuzzFeed representative said the company would sue Kobach again if they encountered another hurdle, but remained optimistic the secretary of state’s office would comply with their records request.

District Judge Larry Hendricks ruled the secretary of state’s office simply clarified payment was needed in advance of the records search and didn’t deny BuzzFeed’s request. BuzzFeed first sued Kobach and his office in October 2017 believing the secretary of state’s office denied a reporter’s records request when she challenged the $1,025 cost of conducting a search of Kobach’s email. Emails BuizzFeed submitted in court filings show their attorney and KSOS senior counsel continued to negotiate the records request, Henricks noted.

“The gist of this correspondence appears to be clarification of certain issues culminating in an agreement to submit the advanced payment in exchange for the requested records search,” Hendricks ruled. “Nothing in the correspondence hints at a denial of (BuzzFeed’s) request.”

BuzzFeed paid the fee in February but argued a January motion from the secretary of state’s office requesting Hendricks dismiss the lawsuit was moot. BuzzFeed also asked the court to order KSOS to report the volume of documents found in the search within 21 days and file a report for the court within 60 days.

Hendricks made no mention of that request in his Friday ruling. He also ignored demands from both parties requesting attorney fees, ruling they would bear their own legal costs.

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Matt Mittenthal, director of communications for BuzzFeed News, said Hendrick’s ruling gave Kobach’s office a chance to fulfill its obligation under the open records law. The company remains open to further legal action.

“Should the Secretary’s office violate these obligations in the future, we have every intention of suing again to enforce them,” he said.

In an unrelated case, Kobach has defended himself in Kansas City, Kansas federal court for the past week. The case, filed in 2016 by The American Civil Liberties Union, challenges him to prove claims of widespread voter fraud.

Kansas public records advocates have said BuzzFeed’s case highlights growing concerns with transparency in the state.

Dough Anstaett, executive director of the Kansas Press Association, said regardless of the dismissal, the case underlines the difficult nature of obtaining records from the state’s public agencies.

“It’s just a constant battle to get public officials to give up information without a fight,” he said. “This jumping through hoops is nothing more than a delay tactic in many cases and it essentially deprives the public of information it has a right to know.”

BuzzFeed’s dispute with Kobach’s office began last June when Kendall Taggart, an investigative data reporter for BuzzFeed, filed a records request for emails, including attachments, sent or received from May 1, 2017 to the date of the records search. That request sought emails containing any of 30 terms, including ICE, immigrant, Trump, voter, fraud and Mexican. BJ Harden, deputy secretary of state for policy, said July 5 staff administrator would need 13 hours to search for the records with an hourly fee of $25, which would cost $325. In addition, a staff attorney would need 20 hours to review the documents with an hourly fee of $35, adding $700 to the bill.

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Taggart asked the office to reconsider, noting the public interest in Kobach’s work. Sue Becker, senior counsel for KSOS, replied on Sept. 5, arguing Kobach’s work with the White House, immigration and presidential advisers, among other things, isn’t being conducted on behalf of Kansas. The six terms that would be covered by KORA, Becker wrote, are voter, voting, fraud, illegal, alien and noncitizen.

BuzzFeed argued in its October petition this response amounted to a blanket rejection and was improper.

Becker in January clarified with BuzzFeed attorney Matt Topic that payment of $1,035 was due in advance in order for the office to conduct searches.

“We read your September 5 letter quite differently, but let’s see if we can’t move this forward,” Topic replied.

Becker told Topic her email to Taggart was meant to alert the reporter that KORA exemptions would likely apply to parts of her request.

“This was in an effort to avoid having her be disappointed with the result after paying for the searches and document review time,” Becker said. “We do not reply with blanket assertions.”

Anstaett challenged the secretary of state’s assertion that the bulk of Taggart’s request would be denied because Kobach’s business wasn’t being conducted on behalf of Kansans. Voters elected Kobach to serve full-time as Secretary of State, he said.

 “It seems awfully self-serving for him to then argue he can take off his Secretary of State hat when it is convenient for him,” he said.

The case underscores two major flaws with the Kansas Open Records Act — the growing cost to obtain records and a burdensome appeals process, two open records experts told The Capital-Journal.

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In Kansas, like many neighboring states, those wanting to appeal an open records denial or cost must petition the district court. The process is costly, cumbersome and opens the door for cases to drag out to the benefit of one side, said Max Kautsch, a Lawrence attorney who specializes open records law.

Ron Keefover, president of the Kansas Sunshine Coalition, noted that advancements in technology made records searches easier and less costly. Anstaett agreed, criticizing the process the secretary of state’s office required of BuzzFeed.

“Frankly, the time spent arguing back and forth should have been spent retrieving the records at a reasonable cost,” he said.


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