May 10, 2013

Petition filed to open records in tobacco settlement

State policymakers need to be armed with information before they decide whether to move tobacco settlement money earmarked for early education to the general fund, the president of Kansas Action for Children said Friday.

State policymakers need to be armed with information before they decide whether to move tobacco settlement money earmarked for early education to the general fund, the president of Kansas Action for Children said Friday.

The advocacy group filed a petition in Shawnee County District Court against the Kansas attorney general’s office Friday, seeking to open records to learn how much the state will benefit from a recent agreement with major tobacco companies.

The attorney general’s office in turn said it is continuing to work on the request.

Gov. Sam Brownback has proposed putting $9.5 million from the arbitration agreement in the state’s general fund. That concerns Kansas Action for Children. The governor’s office, however, says it’s just a matter of shuffling funds because of timing.

The agreement was brokered in December between 17 states, Puerto Rico and the District of Columbia to end an ongoing dispute about whether states were complying with terms of an original settlement that dates back to 1999. A national arbitration panel accepted the agreement in March. Kansas is part of that agreement.

Kansas Action for Children, a non-profit advocacy group based in Topeka, filed a request under the Kansas Open Records Act on May 1 seeking a breakdown of the Kansas portion of tobacco settlement dollars, including calculations made by auditor PricewaterhouseCoopers. The state gets on average $56 million a year from the settlement.

Shannon Cotsoradis, president and CEO of Kansas Action for Children, said state officials need to know how much Kansas has at stake before diverting money from the Kansas Endowment for Youth.

“The KEY fund was designated to be an endowment for the Children’s Initiative Fund,” she said, explaining that money from the fund goes to early education programs such as Early Head Start, Parents as Teachers, Tiny K and others. “We feel like policymakers need to be making a good decision and understand what the implications are. These funds will decline over time. That was the point in having an endowment. Otherwise there is nothing to fall back on for these programs. All we want is the Kansas-specific calculations.”

Sherriene Jones-Sontag, press secretary for Brownback, said payment from the tobacco settlement doesn’t arrive until April, nine months into the state’s fiscal year.

“This nine-month gap between when the money is allocated (July 1st) and when the payment arrives (April) has caused funding uncertainty in the past – even a few years of overspending because the payment was lower than what was anticipated,” she told The Eagle in an email Friday.

She said Brownback, in a budget amendment in February, proposed using $4.6 million from the general fund in fiscal year 2014 and $4.6 million in fiscal year 2015 to fund early education programs.

“When April’s tobacco payment … came in $9.5 million more than what was expected, the governor ... proposed simply to transfer the unexpected funds to help pay for the grants” rather than using state general fund dollars, she said.

“This recommendation in no way affects how much funding any of the early childhood education programs” receives, she said. “In fact, these programs know exactly how much money they will receive during the next two and half years.”

Kansas Action for Children said it believes the money should stay in the endowment. The programs that get money from the KEY Endowment Fund serve about 200,000 children, Cotsoradis said.

The attorney general’s office has said in its responses to Kansas Action for Children that although the settlement is an open record, it does not contain the detailed breakdown requested by the children’s group.

The audit by PricewaterhouseCoopers contains information about other states and is marked confidential, assistant attorney general Lisa Mendoza said in a letter dated Thursday. “We want to be certain that we do not take any action that may interfere with any other party’s rights or any current or future rights the state of Kansas may have in these matters.”

The attorney general’s office said in its first response that it was determining whether “we possess any public records meeting the terms of your request” and would provide Kansas Action for Children with:

• Copies of the requested records
• A statement concerning inability to locate any public records meeting the terms of the request
• A request for clarification about information the group was seeking
• A written estimate of fees to be pre-paid
• A written citation to the law that requires the public record to be closed

In response, Kansas Action for Children’s petition says that “none of these excuses apply in this case. The arbitration settlement was recent and clearly identified. No time to locate it, or inability to locate it was required. No issue of possession is genuine. No issue of clarification of the request is genuine.”

Late Friday afternoon, the attorney general’s office said it was “continuing to work on the open records requests received May 1 and May 8. We will continue to provide information in a timely and accurate manner as required by the Kansas Open Records Act.”

The statement said that information about the settlement was released in April and “an annual accounting from PricewaterhouseCoopers detailing calculations of the state’s payments received will be produced when we determine that it can lawfully be released. We would note that no final settlement agreement document has yet been signed.”

The office also said eight lawsuits challenging the settlement had been filed and remain pending, and “Kansas’ future annual tobacco payments remain undetermined because they result from sales and other events that have not yet occurred.”

In an email to The Eagle, Kansas Action for Children spokeswoman Lauren Beatty said, “It is our belief that the litigation is a settled matter for Kansas and there is simply no reason the AG’s office shouldn’t provide the details of that settlement – like many attorneys general around the country have already done – to the people of Kansas. With millions of dollars on the line, we feel strongly we cannot let the lack of transparency fly under the radar.”

Senate Minority Leader Anthony Hensley, D-Topeka, said he supports Kansas Action for Children’s efforts, and he said that past attorneys general have been more open about settlements.

“I think that the attorney general should be forthcoming and release that information,” he said.

The Kansas Press Association also weighed in on the matter Friday.

“On behalf of the 230 member newspapers of the Kansas Press Association, we applaud this decision by Kansas Action for Children and urge the court to act quickly on the lawsuit. These records are extremely time-sensitive and essential to the ongoing public debate at the Legislature on the budget. Frankly, the Attorney General’s office could cut off this debate fairly quickly by stepping forward immediately and releasing the information,” executive director Doug Anstaett said in a news release.

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