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12  AN ACT concerning public records; relating to records not required to
13    be open; confidentiality of certain records related to tax infor-
14    mation; amending K.S.A. 1996 Supp. 45-221, 75-5133, 79-3234 and
15    79-3614 and repealing the existing section; also repealing K.S.A. 1996
16    Supp. 45-221d. sections.
17  
18  Be it enacted by the Legislature of the State of Kansas:
19    Section 1.  K.S.A. 1996 Supp. 45-221 is hereby amended to read as
20  follows: 45-221. (a) Except to the extent disclosure is otherwise required
21  by law, a public agency shall not be required to disclose:
22    (1)  Records the disclosure of which is specifically prohibited or re-
23  stricted by federal law, state statute or rule of the Kansas supreme court
24  or the disclosure of which is prohibited or restricted pursuant to specific
25  authorization of federal law, state statute or rule of the Kansas supreme
26  court to restrict or prohibit disclosure.
27    (2)  Records which are privileged under the rules of evidence, unless
28  the holder of the privilege consents to the disclosure.
29    (3)  Medical, psychiatric, psychological or alcoholism or drug depend-
30  ency treatment records which pertain to identifiable patients.
31    (4)  Personnel records, performance ratings or individually identifia-
32  ble records pertaining to employees or applicants for employment, except
33  that this exemption shall not apply to the names, positions, salaries and
34  lengths of service of officers and employees of public agencies once they
35  are employed as such.
36    (5)  Information which would reveal the identity of any undercover
37  agent or any informant reporting a specific violation of law.
38    (6)  Letters of reference or recommendation pertaining to the char-
39  acter or qualifications of an identifiable individual.
40    (7)  Library, archive and museum materials contributed by private
41  persons, to the extent of any limitations imposed as conditions of the
42  contribution.
43    (8)  Information which would reveal the identity of an individual who
SB 72--Am. by SCW
                                     

 1  lawfully makes a donation to a public agency, if anonymity of the donor
 2  is a condition of the donation.
 3    (9)  Testing and examination materials, before the test or examination
 4  is given or if it is to be given again, or records of individual test or ex-
 5  amination scores, other than records which show only passage or failure
 6  and not specific scores.
 7    (10)  Criminal investigation records, except that the district court, in
 8  an action brought pursuant to K.S.A. 45-222, and amendments thereto,
 9  may order disclosure of such records, subject to such conditions as the
10  court may impose, if the court finds that disclosure:
11    (A)  Is in the public interest;
12    (B)  would not interfere with any prospective law enforcement action;
13    (C)  would not reveal the identity of any confidential source or un-
14  dercover agent;
15    (D)  would not reveal confidential investigative techniques or proce-
16  dures not known to the general public;
17    (E)  would not endanger the life or physical safety of any person; and
18    (F)  would not reveal the name, address, phone number or any other
19  information which specifically and individually identifies the victim of any
20  sexual offense in article 35 of chapter 21 of the Kansas Statutes Anno-
21  tated, and amendments thereto.
22    (11)  Records of agencies involved in administrative adjudication or
23  civil litigation, compiled in the process of detecting or investigating vio-
24  lations of civil law or administrative rules and regulations, if disclosure
25  would interfere with a prospective administrative adjudication or civil
26  litigation or reveal the identity of a confidential source or undercover
27  agent.
28    (12)  Records of emergency or security information or procedures of
29  a public agency, or plans, drawings, specifications or related information
30  for any building or facility which is used for purposes requiring security
31  measures in or around the building or facility or which is used for the
32  generation or transmission of power, water, fuels or communications, if
33  disclosure would jeopardize security of the public agency, building or
34  facility.
35    (13)  The contents of appraisals or engineering or feasibility estimates
36  or evaluations made by or for a public agency relative to the acquisition
37  of property, prior to the award of formal contracts therefor.
38    (14)  Correspondence between a public agency and a private individ-
39  ual, other than correspondence which is intended to give notice of an
40  action, policy or determination relating to any regulatory, supervisory or
41  enforcement responsibility of the public agency or which is widely dis-
42  tributed to the public by a public agency and is not specifically in response
43  to communications from such a private individual.
SB 72--Am. by SCW
                                     

 1    (15)  Records pertaining to employer-employee negotiations, if dis-
 2  closure would reveal information discussed in a lawful executive session
 3  under K.S.A. 75-4319, and amendments thereto.
 4    (16)  Software programs for electronic data processing and documen-
 5  tation thereof, but each public agency shall maintain a register, open to
 6  the public, that describes:
 7    (A)  The information which the agency maintains on computer facil-
 8  ities; and
 9    (B)  the form in which the information can be made available using
10  existing computer programs.
11    (17)  Applications, financial statements and other information sub-
12  mitted in connection with applications for student financial assistance
13  where financial need is a consideration for the award.
14    (18)  Plans, designs, drawings or specifications which are prepared by
15  a person other than an employee of a public agency or records which are
16  the property of a private person.
17    (19)  Well samples, logs or surveys which the state corporation com-
18  mission requires to be filed by persons who have drilled or caused to be
19  drilled, or are drilling or causing to be drilled, holes for the purpose of
20  discovery or production of oil or gas, to the extent that disclosure is limited
21  by rules and regulations of the state corporation commission.
22    (20)  Notes, preliminary drafts, research data in the process of anal-
23  ysis, unfunded grant proposals, memoranda, recommendations or other
24  records in which opinions are expressed or policies or actions are pro-
25  posed, except that this exemption shall not apply when such records are
26  publicly cited or identified in an open meeting or in an agenda of an open
27  meeting.
28    (21)  Records of a public agency having legislative powers, which re-
29  cords pertain to proposed legislation or amendments to proposed legis-
30  lation, except that this exemption shall not apply when such records are:
31    (A)  Publicly cited or identified in an open meeting or in an agenda
32  of an open meeting; or
33    (B)  distributed to a majority of a quorum of any body which has au-
34  thority to take action or make recommendations to the public agency with
35  regard to the matters to which such records pertain.
36    (22)  Records of a public agency having legislative powers, which rec-
37  [chords pertain to research prepared for one or more members of such
38  agency, except that this exemption shall not apply when such records are:
39    (A)  Publicly cited or identified in an open meeting or in an agenda
40  of an open meeting; or
41    (B)  distributed to a majority of a quorum of any body which has au-
42  thority to take action or make recommendations to the public agency with
43  regard to the matters to which such records pertain.
SB 72--Am. by SCW
                                     

 1    (23)  Library patron and circulation records which pertain to identi-
 2  fiable individuals.
 3    (24)  Records which are compiled for census or research purposes and
 4  which pertain to identifiable individuals.
 5    (25)  Records which represent and constitute the work product of an
 6  attorney.
 7    (26)  Records of a utility or other public service pertaining to individ-
 8  ually identifiable residential customers of the utility or service, except that
 9  information concerning billings for specific individual customers named
10  by the requester shall be subject to disclosure as provided by this act.
11    (27)  Specifications for competitive bidding, until the specifications
12  are officially approved by the public agency.
13    (28)  Sealed bids and related documents, until a bid is accepted or all
14  bids rejected.
15    (29)  Correctional records pertaining to an identifiable inmate or re-
16  leasee, except that:
17    (A)  The name, sentence data, parole eligibility date, disciplinary rec-
18  ord, custody level and location of an inmate photograph and other iden-
19  tifying information, sentence data, [parole eligibility date,] custody or
20  supervision level, disciplinary record, supervision violations, conditions
21  of supervision (excluding requirements pertaining to mental health or sub-
22  stance abuse counseling), location of facility where incarcerated or loca-
23  tion of parole office maintaining supervision and address of a releasee
24  whose crime was committed after the effective date of this act shall be
25  subject to disclosure to any person other than another inmate or releasee,
26  except that disclosure of the location of an inmate transferred to another
27  state pursuant to the interstate corrections compact shall be at the dis-
28  cretion of the secretary of corrections;
29    (B)  the ombudsman of corrections, the attorney general, law enforce-
30  ment agencies, counsel for the inmate to whom the record pertains and
31  any county or district attorney shall have access to correctional records to
32  the extent otherwise permitted by law;
33    (C)  the information provided to the law enforcement agency pursu-
34  ant to the sex offender registration act, K.S.A. 22-4901, et seq., and
35  amendments thereto, shall be subject to disclosure to any person; and
36    (D)  records of the department of corrections regarding the financial
37  assets of an offender in the custody of the secretary of corrections shall
38  be subject to disclosure to the victim, or such victim's family, of the crime
39  for which the inmate is in custody as set forth in an order of restitution
40  by the sentencing court.
41    (30)  Public records containing information of a personal nature
42  where the public disclosure thereof would constitute a clearly unwar-
43  ranted invasion of personal privacy.
SB 72--Am. by SCW
                                     

 1    (31)  Public records pertaining to prospective location of a business
 2  or industry where no previous public disclosure has been made of the
 3  business' or industry's interest in locating in, relocating within or expand-
 4  ing within the state. This exception shall not include those records per-
 5  taining to application of agencies for permits or licenses necessary to do
 6  business or to expand business operations within this state, except as
 7  otherwise provided by law.
 8    (32)  The bidder's list of contractors who have requested bid proposals
 9  for construction projects from any public agency, until a bid is accepted
10  or all bids rejected.
11    (33)  Engineering and architectural estimates made by or for any pub-
12  lic agency relative to public improvements.
13    (34)  Financial information submitted by contractors in qualification
14  statements to any public agency.
15    (35)  Records involved in the obtaining and processing of intellectual
16  property rights that are expected to be, wholly or partially vested in or
17  owned by a state educational institution, as defined in K.S.A. 76-711, and
18  amendments thereto, or an assignee of the institution organized and ex-
19  isting for the benefit of the institution.
20    (36)  Any report or record which is made pursuant to K.S.A. 65-4922,
21  65-4923 or 65-4924, and amendments thereto, and which is privileged
22  pursuant to K.S.A. 65-4915 or 65-4925, and amendments thereto.
23    (37)  Information which would reveal the precise location of an ar-
24  cheological site.
25    (38)  Any financial data or traffic information from a railroad company,
26  to a public agency, concerning the sale, lease or rehabilitation of the
27  railroad's property in Kansas.
28    (39)  Risk-based capital reports, risk-based capital plans and corrective
29  orders including the working papers and the results of any analysis filed
30  with the commissioner of insurance in accordance with K.S.A. 1996 Supp.
31  40-2c20, and amendments thereto.
32    (40)  Memoranda and related materials required to be used to support
33  the annual actuarial opinions submitted pursuant to subsection (b) of
34  K.S.A. 40-409, and amendments thereto.
35    (41)  Disclosure reports filed with the commissioner of insurance un-
36  der subsection (a) of K.S.A. 1996 Supp. 40-2,156, and amendments
37  thereto.
38    (42)  All financial analysis ratios and examination synopses concerning
39  insurance companies that are submitted to the commissioner by the na-
40  tional association of insurance commissioners' insurance regulatory infor-
41  mation system.
42    (43)  Any records the disclosure of which is restricted or prohibited
43  by a tribal-state gaming compact.
SB 72--Am. by SCW
                                     

 1    (44)  Market research, market plans, business plans and the terms and
 2  conditions of managed care or other third party contracts, developed or
 3  entered into by the university of Kansas medical center in the operation
 4  and management of the university hospital which the chancellor of the
 5  university of Kansas or the chancellor's designee determines would give
 6  an unfair advantage to competitors of the university of Kansas medical
 7  center.
 8    (b)  Except to the extent disclosure is otherwise required by law or as
 9  appropriate during the course of an administrative proceeding or on ap-
10  peal from agency action, a public agency or officer shall not disclose fi-
11  nancial information of a taxpayer which may be required or requested by
12  a county appraiser [or the director of property valuation] to assist in
13  the determination of the value of the taxpayer's property for ad valorem
14  taxation purposes; or any financial information of a personal nature re-
15  quired or requested by a public agency or officer, including a name, job
16  description or title revealing the salary or other compensation of officers,
17  employees or applicants for employment with a firm, corporation or
18  agency, except a public agency. Nothing contained herein shall be con-
19  strued to prohibit the publication of statistics, so classified as to prevent
20  identification of particular reports or returns and the items thereof.
21    (c)  As used in this section, the term ``cited or identified'' shall not
22  include a request to an employee of a public agency that a document be
23  prepared.
24    (d)  If a public record contains material which is not subject to dis-
25  closure pursuant to this act, the public agency shall separate or delete
26  such material and make available to the requester that material in the
27  public record which is subject to disclosure pursuant to this act. If a public
28  record is not subject to disclosure because it pertains to an identifiable
29  individual, the public agency shall delete the identifying portions of the
30  record and make available to the requester any remaining portions which
31  are subject to disclosure pursuant to this act, unless the request is for a
32  record pertaining to a specific individual or to such a limited group of
33  individuals that the individuals' identities are reasonably ascertainable, the
34  public agency shall not be required to disclose those portions of the record
35  which pertain to such individual or individuals.
36    (e)  The provisions of this section shall not be construed to exempt
37  from public disclosure statistical information not descriptive of any iden-
38  tifiable person.
39    (f)  Notwithstanding the provisions of subsection (a), any public rec-
40  ord which has been in existence more than 70 years shall be open for
41  inspection by any person unless disclosure of the record is specifically
42  prohibited or restricted by federal law, state statute or rule of the Kansas
43  supreme court or by a policy adopted pursuant to K.S.A. 72-6214, and
SB 72--Am. by SCW
                                     

 1  amendments thereto.
 2    Sec. 2.  K.S.A. 1996 Supp. 75-5133 is hereby amended to read
 3  as follows: 75-5133. (a) Except as otherwise more specifically pro-
 4  vided by law, all information received by the director of taxation
 5  from applications for licensure or registration made or returns or
 6  reports filed under the provisions of any law imposing any excise
 7  tax administered by the director, or from any investigation con-
 8  ducted under such provisions, shall be confidential, and it shall be
 9  unlawful for any officer or employee of the department of revenue
10  to divulge any such information except in accordance with other
11  provisions of law respecting the enforcement and collection of such
12  tax, in accordance with proper judicial order and as provided in
13  K.S.A. 74-2424, and amendments thereto.
14    (b)  Nothing herein in this section shall be construed to prohibit
15  the publication of statistics, so classified as to prevent identification
16  of particular reports or returns and the items thereof, or the in-
17  spection of returns by the attorney general. Nothing in this section
18  shall prohibit the post auditor from access to all such excise tax
19  reports or returns in accordance with and subject to the provisions
20  of subsection (g) of K.S.A. 46-1106, and amendments thereto. Noth-
21  ing in this section shall be construed to prohibit the disclosure of
22  the taxpayer's name, social security number, last known address and total
23  tax liability, including penalty and interest, taxpayer information from
24  excise tax returns to a debt collection agency persons or entities con-
25  tracting with the secretary of revenue pursuant to K.S.A. 75-5140 to
26  75-5143, inclusive, and amendments thereto where the secretary has de-
27  termined disclosure of such information is essential for completion of the
28  contract and has taken appropriate steps to preserve confidentiality.
29    (c)  Notwithstanding the foregoing provisions of this section, the
30  director of taxation may provide such information from returns and
31  reports filed under article 42 of chapter 79 of the Kansas Statutes
32  Annotated to county appraisers as is necessary to insure proper
33  valuations of property. Information from such returns and reports
34  may also be exchanged with any other state agency administering
35  and collecting conservation or other taxes and fees imposed on or
36  measured by mineral production. Nothing in this section shall pro-
37  hibit the disclosure of oil and gas production statistics.
38    (d)  Any person receiving any information under the provisions
39  of subsection (b) or (c) of this section shall be subject to the confi-
40  dentiality provisions of subsection (a) of this section and to the pen-
41  alty provisions of subsection (e) of this section.
42    (e)  Any violation of this section shall be a class B nonperson
43  misdemeanor, and if the offender is an officer or employee of this
SB 72--Am. by SCW
                                     

 1  state, such officer or employee shall be dismissed from office.
 2    Sec. 3.  K.S.A. 1996 Supp. 79-3234 is hereby amended to read
 3  as follows: 79-3234. (a) All reports and returns required by this act
 4  shall be preserved for three years and thereafter until the director
 5  orders them to be destroyed.
 6    (b)  Except in accordance with proper judicial order, or as pro-
 7  vided in subsection (c) or in K.S.A. 17-7511, subsection (g) of K.S.A.
 8  46-1106, K.S.A. 46-1114, or K.S.A. 79-32,153a, and amendments
 9  thereto, it shall be unlawful for the director, any deputy, agent,
10  clerk or other officer, employee or former employee of the depart-
11  ment of revenue or any other state officer or employee or former
12  state officer or employee to divulge, or to make known in any way,
13  the amount of income or any particulars set forth or disclosed in
14  any report, return, federal return or federal return information re-
15  quired under this act; and it shall be unlawful for the director, any
16  deputy, agent, clerk or other officer or employee engaged in the
17  administration of this act to engage in the business or profession of
18  tax accounting or to accept employment, with or without consid-
19  eration, from any person, firm or corporation for the purpose, di-
20  rectly or indirectly, of preparing tax returns or reports required by
21  the laws of the state of Kansas, by any other state or by the United
22  States government, or to accept any employment for the purpose of
23  advising, preparing material or data, or the auditing of books or
24  records to be used in an effort to defeat or cancel any tax or part
25  thereof that has been assessed by the state of Kansas, any other state
26  or by the United States government.
27    (c)  Nothing herein in this section shall be construed to prohibit
28  the publication of statistics, so classified as to prevent the identifi-
29  cation of particular reports or returns and the items thereof, or the
30  inspection of returns by the attorney general or other legal repre-
31  sentatives of the state. Nothing in this section shall prohibit the post
32  auditor from access to all income tax reports or returns in accor-
33  dance with and subject to the provisions of subsection (g) of K.S.A.
34  46-1106 or K.S.A. 46-1114, and amendments thereto. Nothing in this
35  section shall be construed to prohibit the disclosure of the taxpayer's
36  name, social security number, last known address and total tax liability,
37  including penalty and interest, taxpayer information from income tax
38  returns to a debt collection agency persons or entities contracting with
39  the secretary of revenue pursuant to K.S.A. 75-5140 through 75-5143,
40  and amendments thereto where the secretary has determined disclosure
41  of such information is essential for completion of the contract and has
42  taken appropriate steps to preserve confidentiality. Nothing in this sec-
43  tion shall be construed to prohibit the disclosure of job creation
SB 72--Am. by SCW
                                     

 1  and investment information derived from tax schedules required to
 2  be filed under the Kansas income tax act to the secretary of com-
 3  merce.  Nothing in this section shall be construed to prohibit the
 4  disclosure of the taxpayer's name, last known address and residency
 5  status to the department of wildlife and parks to be used solely in
 6  its license fraud investigations. Any person receiving any informa-
 7  tion under the provisions of this subsection shall be subject to the
 8  confidentiality provisions of subsection (b) and to the penalty pro-
 9  visions of subsection (d).
10    (d)  Any violation of subsection (b) or (c) is a class B nonperson
11  misdemeanor and, if the offender is an officer or employee of the
12  state, such officer or employee shall be dismissed from office.
13    (e)  Notwithstanding the provisions of this section, the secretary
14  of revenue may permit the commissioner of internal revenue of the
15  United States, or the proper official of any state imposing an income
16  tax, or the authorized representative of either, to inspect the income
17  tax returns made under this act and the secretary of revenue may
18  make available or furnish to the taxing officials of any other state
19  or the commissioner of internal revenue of the United States or
20  other taxing officials of the federal government, or their authorized
21  representatives, information contained in income tax reports or re-
22  turns or any audit thereof or the report of any investigation made
23  with respect thereto, filed pursuant to the income tax laws, as the
24  secretary may consider proper, but such information shall not be
25  used for any other purpose than that of the administration of tax
26  laws of such state, the state of Kansas or of the United States.
27    (f)  Notwithstanding the provisions of this section, the secretary
28  of revenue may:
29    (1)  Communicate to the executive director of the Kansas lottery
30  information as to whether a person, partnership or corporation is
31  current in the filing of all applicable tax returns and in the payment
32  of all taxes, interest and penalties to the state of Kansas, excluding
33  items under formal appeal, for the purpose of determining whether
34  such person, partnership or corporation is eligible to be selected as
35  a lottery retailer;
36    (2)  communicate to the executive director of the Kansas racing
37  commission as to whether a person, partnership or corporation has
38  failed to meet any tax obligation to the state of Kansas for the pur-
39  pose of determining whether such person, partnership or corpora-
40  tion is eligible for a facility owner license or facility manager license
41  pursuant to the Kansas parimutuel racing act; and
42    (3)  provide such information to the president of Kansas, Inc. as
43  required by K.S.A. 1996 Supp. 74-8017, and amendments thereto.
SB 72--Am. by SCW
                                     

 1  The president and any employees or former employees of Kansas,
 2  Inc. receiving any such information shall be subject to the confi-
 3  dentiality provisions of subsection (b) and to the penalty provisions
 4  of subsection (d).
 5    Sec. 4.  K.S.A. 1996 Supp. 79-3614 is hereby amended to read
 6  as follows: 79-3614. All information received by the director from
 7  returns filed under this act, or from any investigations conducted
 8  under the provisions of this act, shall be confidential, except for
 9  official purposes, and it shall be unlawful for any officer or em-
10  ployee of such director to divulge any such information in any man-
11  ner, except in accordance with a proper judicial order, or as pro-
12  vided in K.S.A. 74-2424, and amendments thereto. The post auditor
13  shall have access to all such information in accordance with and
14  subject to the provisions of subsection (g) of K.S.A. 46-1106, and
15  amendments thereto. Nothing in this section shall be construed to
16  prohibit the disclosure of the taxpayer's name, social security number,
17  last known address and total tax liability, including penalty and interest,
18  taxpayer information from sales tax returns to a debt collection agency
19  persons or entities contracting with the secretary of revenue pursuant
20  to K.S.A. 75-5140 to 75-5143, inclusive where the secretary has deter-
21  mined disclosure of such information is essential for completion of the
22  contract and has taken appropriate steps to preserve confidentiality. Not-
23  withstanding the provisions of this section, the secretary of revenue
24  may provide such information to the president of Kansas, Inc. as
25  required by K.S.A. 1996 Supp. 74-8017, and amendments thereto.
26  The president and any employees or former employees Any person re-
27  ceiving any such information pursuant to this section shall be subject
28  to the same duty of confidentiality imposed on officers and employ-
29  ees of the department of revenue by this section and shall be subject
30  to any civil or criminal penalties imposed by law for violations of
31  such duty of confidentiality.
32    Sec. 2. 5.  K.S.A. 1996 Supp. 45-221, 75-5133, 79-3234 and 45-221d
33  79-3614 are hereby repealed.
34    Sec. 3. 6.  This act shall take effect and be in force from and after its
35  publication in the statute book.