Session of 2000
HOUSE BILL No. 2729
By Representatives Garner, Ballard, Barnes, Burroughs,
Crow, Dean,
Findley,
Flaharty, Gilbert, Kirk, Klein, Kuether, M. Long, McClure,
Nichols,
O'Brien, E. Peterson, Reardon, Rehorn, Ruff, Sharp, Span-
gler,
Swenson, Toelkes and Wells
1-27
14 AN ACT
concerning open records; access to such records; establishing
15 a freedom of
information officer and providing for the powers and
16 duties thereof;
amending K.S.A. 45-222 and 45-223 and K.S.A. 1999
17 Supp. 45-219 and
repealing the existing sections.
18
19 Be it enacted by the Legislature of the
State of Kansas:
20 Section
1. K.S.A. 1999 Supp. 45-219 is hereby amended to read as
21 follows: 45-219. (a) Any person may make
abstracts or obtain copies of
22 any public record to which such person has
access under this act. If copies
23 are requested, the public agency may
require a written request and ad-
24 vance payment of the prescribed fee. A
public agency shall not be re-
25 quired to provide copies of radio or
recording tapes or discs, video tapes
26 or films, pictures, slides, graphics,
illustrations or similar audio or visual
27 items or devices, unless such items or
devices were shown or played to a
28 public meeting of the governing body
thereof, but the public agency shall
29 not be required to provide such items or
devices which are copyrighted
30 by a person other than the public
agency.
31 (b) Copies of
public records shall be made while the records are in
32 the possession, custody and control of the
custodian or a person desig-
33 nated by the custodian and shall be made
under the supervision of such
34 custodian or person. When practical, copies
shall be made in the place
35 where the records are kept. If it is
impractical to do so, the custodian
36 shall allow arrangements to be made for use
of other facilities. If it is
37 necessary to use other facilities for
copying, the cost thereof shall be paid
38 by the person desiring a copy of the
records. In addition, the public
39 agency may charge the same fee for the
services rendered in supervising
40 the copying as for furnishing copies under
subsection (c) and may estab-
41 lish a reasonable schedule of times for
making copies at other facilities.
42 (c) Except as
provided by subsection (f) or where fees for inspection
43 or for copies of a public record are
prescribed by statute, each public
44 agency may prescribe reasonable fees for
providing access to or furnishing
45 copies of public records, subject to the
following:
2
1 (1) In the
case of fees for copies of records, the fees shall not exceed
2 the actual cost of furnishing copies,
including the cost of staff time re-
3 quired 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 staff time
required.
7 (3) Fees
for access to or copies of public records of public agencies
8 within the legislative branch of the
state government shall be established
9 in accordance with K.S.A. 46-1207a
and amendments thereto.
10 (4) Fees for
access to or copies of public records of public agencies
11 within the judicial branch of the state
government shall be established in
12 accordance with rules of the supreme
court.
13 (5) Fees for
access to or copies of public records of a public agency
14 within the executive branch of the state
government shall be established
15 by the agency head.
16 (6) Any
person requesting public records may appeal the
reasonable-
17 ness of the fees charged for providing
access to or furnishing copies of
18 such records to the secretary of
administration freedom of information
19 officer established under section 4 and
amendments thereto whose deci-
20 sion shall be final. A fee for copies of
public records which is equal to or
21 less than $.25 per page shall be deemed a
reasonable fee.
22 (d) Except as
otherwise authorized pursuant to K.S.A. 75-4215 and
23 amendments thereto, each public agency
within the executive branch of
24 the state government shall remit all moneys
received by or for it from
25 fees charged pursuant to this section to
the state treasurer in accordance
26 with K.S.A. 75-4215 and amendments thereto.
Unless otherwise specifi-
27 cally provided by law, the state treasurer
shall deposit the entire amount
28 thereof in the state treasury and credit
the same to the state general fund
29 or an appropriate fee fund as determined by
the agency head.
30 (e) Each public
agency of a political or taxing subdivision shall remit
31 all moneys received by or for it from fees
charged pursuant to this act to
32 the treasurer of such political or taxing
subdivision at least monthly. Upon
33 receipt of any such moneys, such treasurer
shall deposit the entire amount
34 thereof in the treasury of the political or
taxing subdivision and credit the
35 same to the general fund thereof, unless
otherwise specifically provided
36 by law.
37 (f) Any person
who is a certified shorthand reporter may charge fees
38 for transcripts of such person's notes of
judicial or administrative pro-
39 ceedings in accordance with rates
established pursuant to rules of the
40 Kansas supreme court.
41 Sec.
2. K.S.A. 45-222 is hereby amended to read as follows:
45-222.
42 (a) The district court of any county in
which public records are located
43 shall have jurisdiction to enforce the
purposes of this act with respect to
3
1 such records, by injunction, mandamus
or other appropriate order, in an
2 action brought by any person, the
attorney general or a county or district
3 attorney.
4 (b) In any
action hereunder, the court shall determine the matter
de
5 novo. The court on its own
motion, or on motion of either party, may
6 view the records in controversy in
camera before reaching a decision.
7 (c) In any
action hereunder, the court may shall award
attorney fees
8 to the plaintiff if the court finds
that the agency's denial of access to the
9 public record was not in good faith
and without a reasonable basis in fact
10 or law. The award shall be assessed against
the public agency that the
11 court determines to be responsible for the
violation.
12 (d) In any action
hereunder in which the defendant is the prevailing
13 party, the court may award to the defendant
attorney fees if the court
14 finds that the plaintiff maintained the
action not in good faith and without
15 a reasonable basis in fact or law.
16 (e) Except as
otherwise provided by law, proceedings arising under
17 this section shall be assigned for hearing
and trial at the earliest practi-
18 cable date.
19 Sec.
3. K.S.A. 45-223 is hereby amended to read as follows:
45-223.
20 No public agency nor any officer or
employee of a public agency shall be
21 liable for damages resulting from
the failure to provide access to a public
22 record in violation of this
act. (a) An individual who denies access to a
23 public record under the open records act
without a reasonable basis in
24 fact or law to make such denial shall be
liable for the payment of a civil
25 penalty in an action brought by the
attorney general or county or district
26 attorney, in a sum set by the court of
not to exceed $500 for each violation.
27 (b) Civil
penalties sued for and recovered hereunder shall be paid
28 into the state general fund and shall be
made available to the freedom of
29 information officer to assist in
financing expenditures to provide educa-
30 tional information to public agencies
and to the public concerning the
31 provisions of the open records
act.
32 New Sec.
4. (a) There is hereby established within the office of
the
33 secretary of state a freedom of information
officer. The freedom of in-
34 formation officer shall be appointed by the
secretary of state within the
35 current unclassified positions authorized
for the office of secretary of
36 state, shall be in the unclassified service
under the Kansas civil service
37 act and shall serve at the pleasure of the
secretary of state. The freedom
38 of information officer shall assist public
agencies with the administration
39 of the open records act and shall assist
persons requesting public records
40 to obtain access to such records, shall
provide educational information to
41 public agencies and to the public at large
concerning the provisions of
42 the open records act, shall be available to
assist public agencies and per-
43 sons requesting public records to resolve
disputes relating to such public
4
1 records requests, shall develop
guidelines for state agencies and local
2 units of government covering access
to public records, shall investigate
3 citizens' complaints against public
agencies concerning public records,
4 shall report on or before January 8,
2001, to the legislature and the gov-
5 ernor recommendations for enhancing
enforcement of the open records
6 act and shall report annually
thereafter, on or before the first day of each
7 legislative session, to the
legislature and to the governor any recommen-
8 dation relating to the enforcement
and administration of the open records
9 act which the freedom of information
officer deems appropriate and shall
10 perform such other duties as may be
specified by law. Any decision of
11 the freedom of information officer
concerning access to a public record
12 shall be final and binding on the official
custodian of the record.
13 (b) This section
shall be part of and supplemental to the open records
14 act.
15 Sec. 5. K.S.A. 45-222 and 45-223
and K.S.A. 1999 Supp. 45-219 are
16 hereby repealed.
17 Sec. 6. This act shall
take effect and be in force from and after its
18 publication in the Kansas register.