Session of 1999
         
HOUSE BILL No. 2435
         
By Representative Lightner
          
2-10
          
  9             AN  ACT concerning witness protection; relating to program thereof; at-
10             torney general, duties and responsibilities; amending K.S.A. 1998
11             Supp. 45-221 and repealing the existing section.
12      
13       Be it enacted by the Legislature of the State of Kansas:
14             New Section  1. There is hereby established the witness protection
15       program.
16             New Sec.  2. As used in this act:
17             (a) "Witness" means any person who has been summoned, or is rea-
18       sonably expected to be summoned, to testify in a criminal matter, includ-
19       ing grand jury proceedings, for the state whether or not formal legal
20       proceedings have been filed. Active or passive participation in the crim-
21       inal matter does not disqualify an individual from being a witness. "Wit-
22       ness" may also apply to family, friends or associates of the witness who
23       are deemed by the attorney general to be endangered;
24             (b) "credible evidence" means evidence leading a reasonable person
25       to believe that substantial reliability should be attached to the evidence;
26       and
27             (c) "protection" means formal admission into a witness protection
28       program established by this act memorialized by a written agreement
29       between the attorney general and the witness.
30             New Sec.  3. The witness protection program shall be administered
31       by the attorney general. In any criminal proceeding within this state, when
32       the action is brought by a county or district attorney, where credible
33       evidence exists of a substantial danger that a witness may suffer intimi-
34       dation or retaliatory violence, the attorney general may reimburse state
35       and local agencies for the costs of providing witness protection services,
36       including temporary relocation services.
37             New Sec.  4. The attorney general shall give priority to matters in-
38       volving organized crime, gang activities, drug trafficking and cases in-
39       volving a high degree of risk to the witness. Special regard shall also be
40       given to the elderly, the young, battered, victims of domestic violence,
41       the infirm, the handicapped and victims of hate incidents.
42             New Sec.  5. The attorney general shall coordinate the efforts of state
43       and local agencies to secure witness protection services and then reim-

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  1       burse those state and local agencies for the costs of the services that the
  2       attorney general determines to be necessary to protect a witness from
  3       bodily injury and otherwise to assure the health, safety and welfare of the
  4       witness. The attorney general may reimburse the state or local agencies
  5       that provide witnesses with any of the following:
  6             (a) Armed protection or escort by law enforcement officers or secu-
  7       rity personnel before, during, or subsequent to, legal proceedings;
  8             (b) physical relocation to an alternate residence;
  9             (c) housing expense;
10             (d) basic living expenses, including, but not limited to, food, trans-
11       portation, utility costs and health care; and
12             (e) other services as needed and approved by the attorney general.
13             New Sec.  6. The witness protection agreement shall be in writing
14       and shall specify the responsibilities of the protected person that establish
15       the conditions for the attorney general providing protection. The pro-
16       tected person shall agree to all of the following:
17             (a) If a witness or potential witness, to testify in and provide infor-
18       mation to all appropriate law enforcement agencies concerning all appro-
19       priate proceedings;
20             (b) to refrain from committing any crime;
21             (c) to take all necessary steps to avoid detection by others of the facts
22       concerning the protection provided to that person under this act;
23             (d) to comply with legal obligations and civil judgments against that
24       person;
25             (e) to cooperate with all reasonable requests of officers and employ-
26       ees of this state who are providing protection under this act;
27             (f) to designate another person to act as agent for the service of
28       process;
29             (g) to make a sworn statement of all outstanding legal obligations,
30       including obligations concerning child custody and visitation;
31             (h) to disclose any probation or parole responsibilities, if the person
32       is on probation or parole; and
33             (i) to regularly inform the appropriate program official of such pro-
34       tected person's activities and current address.
35             New Sec.  7. Funds available to implement this act may be used for
36       any of the following:
37             (a) To protect witnesses where credible evidence exists that they may
38       be in substantial danger of intimidation or retaliatory violence because of
39       their testimony;
40             (b) to provide temporary relocation of witnesses and provide for their
41       transition and well-being into a safe and secure environment; and
42             (c) to pay the costs of administering the program.
43             New  Sec.  8. Protection, including temporary relocation services,

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  1       may be provided for up to six months or until the risk giving rise to the
  2       certification has diminished, whichever occurs first.
  3             New Sec.  9. The attorney general shall adopt rules and regulations
  4       to implement the provisions of this act. These rules and regulations shall
  5       include:
  6             (a) A process whereby state and local agencies shall apply for reim-
  7       bursement of the costs of providing witness protection services; and
  8             (b) an appropriate level for the match that shall be made by local
  9       agencies. The attorney general may also establish a process through which
10       to waive the required local match when appropriate.
11             New Sec.  10. The state of Kansas, the counties and cities within the
12       state, and their respective officers and employees shall have immunity
13       from civil liability for any decision declining or revoking protection to a
14       witness under this act.
15             New Sec.  11. All information relating to any witness participating in
16       the program established pursuant to this act shall remain confidential and
17       is not subject to disclosure pursuant to the Kansas open meetings act.
18             New Sec.  12. The attorney general shall make an annual report to
19       the legislature prior to the legislative session commencing in 2000 and
20       each legislative session thereafter on the fiscal and operational status of
21       the program.
22             Sec.  13. K.S.A. 1998 Supp. 45-221 is hereby amended to read as
23       follows: 45-221. (a) Except to the extent disclosure is otherwise required
24       by law, a public agency shall not be required to disclose:
25             (1) Records the disclosure of which is specifically prohibited or re-
26       stricted by federal law, state statute or rule of the Kansas supreme court
27       or the disclosure of which is prohibited or restricted pursuant to specific
28       authorization of federal law, state statute or rule of the Kansas supreme
29       court to restrict or prohibit disclosure.
30             (2) Records which are privileged under the rules of evidence, unless
31       the holder of the privilege consents to the disclosure.
32             (3) Medical, psychiatric, psychological or alcoholism or drug depend-
33       ency treatment records which pertain to identifiable patients.
34             (4) Personnel records, performance ratings or individually identifia-
35       ble records pertaining to employees or applicants for employment, except
36       that this exemption shall not apply to the names, positions, salaries and
37       lengths of service of officers and employees of public agencies once they
38       are employed as such.
39             (5) Information which would reveal the identity of any undercover
40       agent or any informant reporting a specific violation of law.
41             (6) Letters of reference or recommendation pertaining to the char-
42       acter or qualifications of an identifiable individual.
43             (7) Library, archive and museum materials contributed by private

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

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

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  1             (B) distributed to a majority of a quorum of any body which has au-
  2       thority to take action or make recommendations to the public agency with
  3       regard to the matters to which such records pertain.
  4             (23) Library patron and circulation records which pertain to identi-
  5       fiable individuals.
  6             (24) Records which are compiled for census or research purposes and
  7       which pertain to identifiable individuals.
  8             (25) Records which represent and constitute the work product of an
  9       attorney.
10             (26) Records of a utility or other public service pertaining to individ-
11       ually identifiable residential customers of the utility or service, except that
12       information concerning billings for specific individual customers named
13       by the requester shall be subject to disclosure as provided by this act.
14             (27) Specifications for competitive bidding, until the specifications
15       are officially approved by the public agency.
16             (28) Sealed bids and related documents, until a bid is accepted or all
17       bids rejected.
18             (29) Correctional records pertaining to an identifiable inmate or re-
19       lease, except that:
20             (A) The name; photograph and other identifying information; sen-
21       tence data; parole eligibility date; custody or supervision level; disciplinary
22       record; supervision violations; conditions of supervision, excluding
23       requirements pertaining to mental health or substance abuse counseling;
24       location of facility where incarcerated or location of parole office main-
25       taining supervision and address of a releasee whose crime was committed
26       after the effective date of this act shall be subject to disclosure to any
27       person other than another inmate or releasee, except that the disclosure
28       of the location of an inmate transferred to another state pursuant to the
29       interstate corrections compact shall be at the discretion of the secretary
30       of corrections;
31             (B) the ombudsman of corrections, the attorney general, law enforce-
32       ment agencies, counsel for the inmate to whom the record pertains and
33       any county or district attorney shall have access to correctional records to
34       the extent otherwise permitted by law;
35             (C) the information provided to the law enforcement agency pursu-
36       ant to the sex offender registration act, K.S.A. 22-4901, et seq., and
37       amendments thereto, shall be subject to disclosure to any person, except
38       that the name, address, telephone number or any other information which
39       specifically and individually identifies the victim of any offender required
40       to register as provided by the Kansas offender registration act, K.S.A. 22-
41       4901 et seq. and amendments thereto, shall not be disclosed; and
42             (D) records of the department of corrections regarding the financial
43       assets of an offender in the custody of the secretary of corrections shall

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  1       be subject to disclosure to the victim, or such victim's family, of the crime
  2       for which the inmate is in custody as set forth in an order of restitution
  3       by the sentencing court.
  4             (30) Public records containing information of a personal nature
  5       where the public disclosure thereof would constitute a clearly unwar-
  6       ranted invasion of personal privacy.
  7             (31) Public records pertaining to prospective location of a business
  8       or industry where no previous public disclosure has been made of the
  9       business' or industry's interest in locating in, relocating within or expand-
10       ing within the state. This exception shall not include those records per-
11       taining to application of agencies for permits or licenses necessary to do
12       business or to expand business operations within this state, except as
13       otherwise provided by law.
14             (32) The bidder's list of contractors who have requested bid proposals
15       for construction projects from any public agency, until a bid is accepted
16       or all bids rejected.
17             (33) Engineering and architectural estimates made by or for any pub-
18       lic agency relative to public improvements.
19             (34) Financial information submitted by contractors in qualification
20       statements to any public agency.
21             (35) Records involved in the obtaining and processing of intellectual
22       property rights that are expected to be, wholly or partially vested in or
23       owned by a state educational institution, as defined in K.S.A. 76-711, and
24       amendments thereto, or an assignee of the institution organized and ex-
25       isting for the benefit of the institution.
26             (36) Any report or record which is made pursuant to K.S.A. 65-4922,
27       65-4923 or 65-4924, and amendments thereto, and which is privileged
28       pursuant to K.S.A. 65-4915 or 65-4925, and amendments thereto.
29             (37) Information which would reveal the precise location of an ar-
30       cheological site.
31             (38) Any financial data or traffic information from a railroad company,
32       to a public agency, concerning the sale, lease or rehabilitation of the
33       railroad's property in Kansas.
34             (39) Risk-based capital reports, risk-based capital plans and corrective
35       orders including the working papers and the results of any analysis filed
36       with the commissioner of insurance in accordance with K.S.A. 1998 Supp.
37       40-2c20, and amendments thereto.
38             (40) Memoranda and related materials required to be used to support
39       the annual actuarial opinions submitted pursuant to subsection (b) of
40       K.S.A. 40-409, and amendments thereto.
41             (41) Disclosure reports filed with the commissioner of insurance un-
42       der subsection (a) of K.S.A. 1998 Supp. 40-2,156, and amendments
43       thereto.

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  1             (42) All financial analysis ratios and examination synopses concerning
  2       insurance companies that are submitted to the commissioner by the na-
  3       tional association of insurance commissioners' insurance regulatory infor-
  4       mation system.
  5             (43) Any records the disclosure of which is restricted or prohibited
  6       by a tribal-state gaming compact.
  7             (44) Market research, market plans, business plans and the terms and
  8       conditions of managed care or other third party contracts, developed or
  9       entered into by the university of Kansas medical center in the operation
10       and management of the university hospital which the chancellor of the
11       university of Kansas or the chancellor's designee determines would give
12       an unfair advantage to competitors of the university of Kansas medical
13       center.
14             (45) All records related to any witness participating in the witness
15       protection program as provided in section 1 et seq. and amendments
16       thereto.
17             (b) Except to the extent disclosure is otherwise required by law or as
18       appropriate during the course of an administrative proceeding or on ap-
19       peal from agency action, a public agency or officer shall not disclose fi-
20       nancial information of a taxpayer which may be required or requested by
21       a county appraiser or the director of property valuation to assist in the
22       determination of the value of the taxpayer's property for ad valorem tax-
23       ation purposes; or any financial information of a personal nature required
24       or requested by a public agency or officer, including a name, job descrip-
25       tion or title revealing the salary or other compensation of officers, em-
26       ployees or applicants for employment with a firm, corporation or agency,
27       except a public agency. Nothing contained herein shall be construed to
28       prohibit the publication of statistics, so classified as to prevent identifi-
29       cation of particular reports or returns and the items thereof.
30             (c) As used in this section, the term "cited or identified" shall not
31       include a request to an employee of a public agency that a document be
32       prepared.
33             (d) If a public record contains material which is not subject to dis-
34       closure pursuant to this act, the public agency shall separate or delete
35       such material and make available to the requester that material in the
36       public record which is subject to disclosure pursuant to this act. If a public
37       record is not subject to disclosure because it pertains to an identifiable
38       individual, the public agency shall delete the identifying portions of the
39       record and make available to the requester any remaining portions which
40       are subject to disclosure pursuant to this act, unless the request is for a
41       record pertaining to a specific individual or to such a limited group of
42       individuals that the individuals' identities are reasonably ascertainable, the
43       public agency shall not be required to disclose those portions of the record

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  1       which pertain to such individual or individuals.
  2             (e) The provisions of this section shall not be construed to exempt
  3       from public disclosure statistical information not descriptive of any iden-
  4       tifiable person.
  5             (f) Notwithstanding the provisions of subsection (a), any public rec-
  6       ord which has been in existence more than 70 years shall be open for
  7       inspection by any person unless disclosure of the record is specifically
  8       prohibited or restricted by federal law, state statute or rule of the Kansas
  9       supreme court or by a policy adopted pursuant to K.S.A. 72-6214, and
10       amendments thereto. 
11       Sec.  14. K.S.A. 1998 Supp. 45-221 is hereby repealed.
12        Sec.  15. This act shall take effect and be in force from and after its
13       publication in the statute book.