By Sherman Smith, Kansas Reflector
TOPEKA — The Kansas Attorney General’s Office determined Emporia State University violated state law last year by failing to promptly respond to an open records request from Kansas Reflector.
However, the Attorney General’s Office dismissed other parts of a complaint filed by Kansas Reflector regarding the $700 fee ESU charged to produce a list of employees who received a unique bonus on a single day. And the attorney who handled the request, Amber Smith, didn’t answer questions about why it took the office 18 months to review the complaint.
“Public officials in this state who value keeping the public in the dark are likely to cheer the AG’s determination that a $700 charge to produce digital records is reasonable,” said Max Kautsch, a First Amendment lawyer with experience in open records litigation. “First, they are likely pleased because this result indicates that whatever accountability is meted out, it will not be swift.”
The complaint followed reporting by Kansas Reflector on secret performance bonuses ESU president Ken Hush awarded to 68 faculty members six weeks after he fired 33 faculty members, including tenured professors, to save costs. A subsequent Faculty Senate meetingrevealed that professors who received the bonuses, which were unique from other kinds of performance-based compensation, were clueless about why they were being rewarded.
Kansas Reflector on March 1, 2023, asked ESU for the names and titles of faculty members who received performance bonuses during that academic year. The university acknowledged the request on March 8 but didn’t respond until March 10, even though state law requires government agencies to produce records within three business days or provide an explanation for when the records will be available.
The university insisted the records would require 20 hours of staff time at $35 per hour to produce. After a reader-supported fundraising drive, Kansas Reflector on March 20 paid the university $700 to acquire the records. Two weeks later, the university produced the records along with a refund of $87.50 because the request only required 17.5 hours of staff time.
Kansas Reflector on April 13, 2023, filed a complaint with the Kansas Attorney General’s Office that alleged ESU violated the Kansas Open Records Act by failing to respond within three business days and by inflating the hours it would take to comply with the request. Additionally, the complaint challenged ESU’s unlawful policy of charging $35 per hour regardless of the actual wages of individuals who work on a records request.
The records produced by ESU show the bonuses align with a specific administrative code. Kansas Reflector’s complaint questioned why the university couldn’t quickly produce the records, based on past experience with similar records requests at other state agencies and software documentation about the ease of navigating payroll records.
The AG’s office said in December 2023 that it was still working on the request. Smith, the attorney who handled the complaint, notified Kansas Reflector of her ruling in a letter dated Oct. 22, 2024 — more than 18 months after the complaint was filed. Smith’s letter said ESU provided information in response to the complaint on July 11, 2024.
The university admitted it violated the Kansas Open Records Act, or KORA, when it didn’t respond within three business days.
“Although the university violated the KORA, it appears this may be the result of shortcomings in internal office procedures or human error, and not intentional efforts to subvert the KORA,” Smith wrote. “In mitigation, the university stated it has ‘added resources and improved the university’s process of responding to, and tracking, all KORA requests.’ Nevertheless, we will work with the university to ensure this oversight does not reoccur. We will also report this violation in our annual report.”
The university didn’t respond to a request to comment for this story.
Smith’s letter said ESU explained that numerous high-ranking staff worked to produce the basic payroll records. They included the university’s chief of human resources, vice president of administration and finance, director of budget, assistant director of budget, a financial systems administrator, two human resources professionals, and four IT system analysts. The university claimed they had to navigate an interlocking web of software programs that interact with the State of Kansas Human Resources Information and Payroll System, or SHARP, in order to find payroll records. The staff then manually reviewed those records to find the individuals who received bonuses, and then redact their personal information.
The university provided Smith with a breakdown of wages and hours worked to show its actual costs exceeded $700. Based on that information, Smith concluded the university charged a reasonable rate.
Smith didn’t respond to an email asking why it took 18 months to make a finding in the complaint, and whether she talked to anyone outside of ESU about how the state payroll system works.
Kautsch, the First Amendment lawyer, said “transparency opponents” would welcome the news that hundreds of dollars may be assessed to produce digital records.
“How could it be possible that 17-plus hours would be needed to respond to a request for digital records in 2024, when software companies are trying to stay competitive by offering programs that can be searched efficiently?” Kautsch said.
And “officials in Kansas who enjoy keeping secrets are likely particularly keen on the AG’s finding that charging an erroneous, higher amount to produce records is not a violation so long as the agency can assert that its personnel spent more time responding to the request than documented in the response to the request,” Kautsch added.
“This finding is particularly puzzling given that the university reimbursed the $87.50 overage long ago, a fact that does not appear in the AG’s letter,” Kautsch said. “Why did the university feel compelled to reimburse Reflector if the entire $700 were, in the AG’s opinion, ‘actual costs’?”
The Kansas Department of Administration oversees and provides support for SHARP, the payroll system used by state agencies, including universities. The department declined a request to interview someone familiar with the system.
“We can’t answer your questions as it is not our agency’s purview to conduct payroll for universities, so we wouldn’t know how long it would take them to execute specific processes,” said Samir Arif, spokesman for KDOR.
Launched in July 2020, Kansas Reflector is an affiliate of States Newsroom, the nation’s largest state-focused nonprofit news organization, supported by grants and donations. Kansas Reflector retains full editorial independence.
