A lawsuit to enforce compliance with the Act requires a written request for identifiable records made to the records’ custodian. The custodian bears the burden of justifying the adequacy of its response, see, e.g., Parker v. Lee, 259 Ga. 195, 198, 378 S.E.2d 677, 680 (1989), and the reasonableness of any fee imposed, see, e.g., McFrugal Rental of Riverdale, Inc. v. Garr, 262 Ga. 369, 418 S.E.2d 60 (1992).
K.S.A. 45-222(c) provides that “in any action hereunder, or under K.S.A. 2018 Supp. 45-251, and amendments thereto, the burden of proof shall be on the public agency to sustain its action.” Thus, the defendant agency must prove by preponderance of the evidence that the requested record fits the exemption or exemptions contained in K.S.A. 45-221(a)(1) through (55) authorizing its nondisclosure.
The burden of proof related to litigating whether criminal investigation records were properly withheld under K.S.A. 45-221(a)(10) is more complicated. In Harris Enterprises, Inc. v. Moore, the Kansas Supreme Court ruled, contrary to the plain language of the statute, that a plaintiff requesting “criminal investigation records” must prove that disclosure of the records is “in the public interest” under K.S.A. 45-221(a)(10). The “burden of establishing that disclosure is in the public interest lies with the person seeking disclosure.” Harris Enters., Inc. v. Moore, 241 Kan. 59, 65–66 (1987).
As to the remaining factors set forth in K.S.A. 45-221(a)(10), the agency is tasked with proving that disclosure of the requested records would result in “probable harm” as described in K.S.A. 45–221(a)(10)(B) through (F). SeeHarris, 241 Kan. at 65.