Session of 2000
HOUSE BILL No. 2722
By Committee on Local Government
1-26
9 AN ACT
concerning open records; access to such records; establishing
10 a freedom of
information officer and providing for the powers and
11 duties thereof;
amending K.S.A. 45-218, 45-222 and 45-223 and K.S.A.
12 1999 Supp. 45-219 and
repealing the existing sections.
13
14 Be it enacted by the Legislature of the
State of Kansas:
15 Section
1. K.S.A. 45-218 is hereby amended to read as follows: 45-
16 218. (a) All public records shall be open
for inspection by any person,
17 except as otherwise provided by this act,
and suitable facilities shall be
18 made available by each public agency for
this purpose. No person shall
19 removal original copies of public records
from the office of any public
20 agency without the written permission of
the custodian of the record.
21 (b) Upon request
in accordance with procedures adopted under
22 K.S.A. 45-220 and amendments
thereto, any person may inspect public
23 records during the regular office hours of
the public agency and during
24 any additional hours established by the
public agency pursuant to K.S.A.
25 45-220 and amendments thereto.
26 (c) If the person
to whom the request is directed is not the custodian
27 of the public record requested, such person
shall so notify the requester
28 and shall furnish the name and location of
the custodian of the public
29 record, if known to or readily
ascertainable by such person.
30 (d) Each request
for access to a public record shall be acted upon
as
31 soon as possible, but not later
than the end of the third business day
32 following the date that the request
is received at the time requested except
33 when the records are not on-site or
which must be constructed and pre-
34 pared. If the record is not
on-site, the record shall be retrieved not later
35 than the end of the third business day
following the date that the request
36 is received and if the record must be
constructed and prepared the record
37 shall be available not later than th end
of the seventh business day follow-
38 ing the date that the request is
received. If access to the public record is
39 not granted immediately, the custodian
shall give a detailed explanation
40 of the cause for further delay and
provide the place and earliest time and
41 date that the record will
can reasonably be available for inspection or
42 copies. If the request for access is
denied, the custodian shall provide,
43 upon request, a written
statement of the grounds for denial. Such state-
2
1 ment shall cite the specific
provision of law under which access is denied
2 and shall be furnished to the
requester of the public record not later than
3 the end of the third business day
following the date that the request for
4 the statement is received.
5 (e) The
custodian may refuse to provide access to a public record, or
6 to permit inspection, if a request
places an unreasonable burden in pro-
7 ducing public records or if the
custodian has reason to believe that re-
8 peated requests are intended to
disrupt other essential functions of the
9 public agency. However, refusal under
this subsection must be sustained
10 by preponderance of the evidence.
11 (f) A public
agency may charge and require advance payment of a fee
12 for providing access to or furnishing
copies of public records, subject to
13 K.S.A. 45-219 and amendments
thereto.
14 Sec.
2. K.S.A. 1999 Supp. 45-219 is hereby amended to read as
fol-
15 lows: 45-219. (a) Any person may make
abstracts or obtain copies of any
16 map, paper or electronic public
record to which such person has access
17 under this act. If copies are requested,
the public agency may require a
18 written request and advance payment at
the time of the request of the
19 prescribed fee. A public agency shall not
be required to provide copies
20 of radio or recording tapes or discs, video
tapes or films, pictures, slides,
21 graphics, illustrations or similar audio or
visual items or devices, unless
22 such items or devices were shown or played
to a public meeting of the
23 governing body thereof, but the public
agency shall not be required to
24 provide such items or devices which are
copyrighted by a person other
25 than the public agency.
26 (b) Copies of
public records shall be made at the time of the request
27 and while the records are in the
possession, custody and control of the
28 custodian or a person designated by the
custodian and shall be made
29 under the supervision of such custodian or
person. When practical, copies
30 shall be made in the place where the
records are kept. If it is impractical
31 to do so, the custodian shall allow
reasonable arrangements to be made
32 for use of other facilities on a timely
basis. If it is necessary to use other
33 facilities for copying, the cost thereof
shall be paid by the person desiring
34 a copy of the records. In addition, the
public agency may charge the same
35 fee for the services rendered in
supervising the copying as for furnishing
36 copies under subsection (c) and may
establish a reasonable schedule of
37 times for making copies at other
facilities.
38 (c) Except as
provided by subsection (f) or where fees for inspection
39 or for copies of a public record are
prescribed by statute, each public
40 agency may prescribe reasonable fees for
providing access to or furnishing
41 copies of public records, subject to the
following:
42 (1) In the case
of fees for copies of records, fees for letter-sized
paper
43 shall not exceed $.25 per page and fees
for legal-sized paper shall not
3
1 exceed $.35 per page. For
copies made on paper larger than legal size, the
2 fees shall not exceed the actual cost
of furnishing copies, including the
3 cost of staff time required to make
the information available.
4 (2) In the
case of fees for providing access to records maintained on
5 computer facilities, the fees shall
include only the cost of any computer
6 services, including
the cost of the discs used to download the records and
7 reasonable staff time
required. The cost for computer services to generate
8 records shall be the time and
materials used.
9
(3) Subject to the provisions of the open records act,
fees for access
10 to or copies of public records of public
agencies within the legislative
11 branch of the state government shall be
established in accordance with
12 K.S.A. 46-1207a and amendments thereto.
13 (4) Subject to
the provisions of the open records act, fees for access
14 to or copies of public records of public
agencies within the judicial branch
15 of the state government shall be
established in accordance with rules of
16 the supreme court.
17 (5) Subject to
the provisions of the open records act, fees for access
18 to or copies of public records of a public
agency within the executive
19 branch of the state government shall be
established by the agency head.
20 (6) Any
person requesting public records may appeal the
reasonable-
21 ness of the fees charged for providing
access to or furnishing copies of
22 such records to the secretary of
administration freedom of information
23 officer established under section 5 and
amendments thereto whose deci-
24 sion shall be final. A fee for copies of
public records which is equal to or
25 less than $.25 per page shall be deemed a
reasonable fee.
26 (7) The
director of accounts and reports shall review annually all
fees
27 charged by state agencies for copies of
public records and shall report to
28 the legislature, on or before the first
day or each regular session of the
29 legislature the results of such
review.
30 (d) Except as
otherwise authorized pursuant to K.S.A. 75-4215 and
31 amendments thereto, each public agency
within the executive branch of
32 the state government shall remit all moneys
received by or for it from
33 fees charged pursuant to this section to
the state treasurer in accordance
34 with K.S.A. 75-4215 and amendments thereto.
Unless otherwise specifi-
35 cally provided by law, the state treasurer
shall deposit the entire amount
36 thereof in the state treasury and credit
the same to the state general fund
37 or an appropriate fee fund as determined by
the agency head.
38 (e) Each public
agency of a political or taxing subdivision shall remit
39 all moneys received by or for it from fees
charged pursuant to this act to
40 the treasurer of such political or taxing
subdivision at least monthly. Upon
41 receipt of any such moneys, such treasurer
shall deposit the entire amount
42 thereof in the treasury of the political or
taxing subdivision and credit the
43 same to the general fund thereof, unless
otherwise specifically provided
4
1 by law.
2 (f)
(1) Any person who is a certified shorthand reporter
may charge
3 fees for transcripts of such person's
notes of judicial or administrative
4 proceedings in accordance with rates
established pursuant to rules of the
5 Kansas supreme court.
6
(2) Nothing in this section shall be construed to require
any public
7 agency to charge a fee for
inspection or for copies of a public record.
8 Sec.
3. K.S.A. 45-222 is hereby amended to read as follows:
45-222.
9 (a) The district court of any county
in which public records are located
10 shall have jurisdiction to enforce the
purposes of this act with respect to
11 such records, by injunction, mandamus or
other appropriate order, in an
12 action brought by any person, the attorney
general or a county or district
13 attorney.
14 (b) In any action
hereunder, the court shall determine the matter de
15 novo. The court on its own motion,
or on motion of either party, may
16 view the records in controversy in
camera before reaching a decision.
17 (c) In any action
hereunder, the court may shall award
attorney fees
18 to the plaintiff if the court finds that
the agency's denial of access to the
19 public record was not in good faith and
without a reasonable basis in fact
20 or law. The award shall be assessed against
the public agency that the
21 court determines to be responsible for the
violation.
22 (d) In any action
hereunder in which the defendant is the prevailing
23 party, the court may award to the defendant
attorney fees if the court
24 finds that the plaintiff maintained the
action not in good faith and without
25 a reasonable basis in fact or law.
26 (e) Except as
otherwise provided by law, proceedings arising under
27 this section shall be assigned for hearing
and trial at the earliest practi-
28 cable date.
29 Sec.
4. K.S.A. 45-223 is hereby amended to read as follows:
45-223.
30 No public agency nor any officer or
employee of a public agency shall be
31 liable for damages resulting from
the failure to provide access to a public
32 record in violation of this
act. (a) An individual who denies access to a
33 public record under the open records act
without a reasonable basis in
34 fact or law to make such denial shall be
liable for the payment of a civil
35 penalty in an action brought by the
attorney general or county or district
36 attorney, in a sum set by the court of
not to exceed $500 for each violation.
37 (b) Civil
penalties sued for and recovered hereunder shall be paid
38 into the state general fund and shall be
made available to the freedom of
39 information officer to assist in
financing expenditures to provide educa-
40 tional information to public agencies
and to the public concerning the
41 provisions of the open records
act.
42 New Sec.
5. (a) There is hereby established within the office of
the
43 attorney general a freedom of information
officer. The freedom of infor-
5
1 mation officer shall be appointed by
the attorney general within the cur-
2 rent unclassified positions
authorized for the office of attorney general,
3 shall be in the unclassified service
under the Kansas civil service act and
4 shall serve at the pleasure of the
attorney general. The freedom of infor-
5 mation officer shall assist public
agencies with the administration of the
6 open records act and shall assist
persons requesting public records to
7 obtain access to such records, shall
provide educational information to
8 public agencies and to the public at
large concerning the provisions of
9 the open records act, shall be
available to assist public agencies and per-
10 sons requesting public records to resolve
disputes relating to such public
11 records requests, shall develop guidelines
for state agencies and local
12 units of government covering access to
public records, shall investigate
13 citizens' complaints against public
agencies concerning public records,
14 shall report on or before January 8, 2001,
to the legislature, the attorney
15 general and the governor recommendations
for enhancing enforcement
16 of the open records act and shall report
annually thereafter, on or before
17 the first day of each legislative session,
to the legislature, the attorney
18 general and to the governor any
recommendation relating to the enforce-
19 ment and administration of the open records
act which the freedom of
20 information officer deems appropriate and
shall perform such other du-
21 ties as may be specified by law. Any
decision of the freedom of infor-
22 mation officer concerning access to a
public record shall be final and
23 binding on the official custodian of the
record.
24 (b) The attorney
general shall review all exceptions to the require-
25 ments of the open records act and shall
report on or before January 8,
26 2001, to the legislature and the governor
recommendations for modifying
27 or eliminating any such exceptions as the
attorney general deems
28 appropriate.
29 (c) This section
shall be part of and supplemental to the open records
30 act.
31 Sec. 6. K.S.A. 45-218, 45-222
and 45-223 and K.S.A. 1999 Supp. 45-
32 219 are hereby repealed.
33 Sec. 7. This act shall
take effect and be in force from and after its
34 publication in the Kansas register.