Session of 2000
HOUSE BILL No. 2920
By Committee on Governmental Organization and
Elections
2-9
9 AN ACT
concerning the open records act; concerning records not re-
10 quired to be open;
amending K.S.A. 45-215 and K.S.A. 1999 Supp.
11 45-221 and repealing
the existing sections.
12
13 Be it enacted by the Legislature of the
State of Kansas:
14 Section
1. K.S.A. 45-215 is hereby amended to read as follows: 45-
15 215. K.S.A. 45-215 through 45-223 and
section 3, and amendments
16 thereto, shall be known and may be
cited as the open records act.
17 Sec.
2. K.S.A. 1999 Supp. 45-221 is hereby amended to read as
fol-
18 lows: 45-221. (a) Except to the extent
disclosure is otherwise required by
19 law, a public agency shall not be required
to disclose:
20 (1) Records the
disclosure of which is specifically prohibited or re-
21 stricted by federal law, state statute or
rule of the Kansas supreme court
22 or the disclosure of which is prohibited or
restricted pursuant to specific
23 authorization of federal law, state statute
or rule of the Kansas supreme
24 court to restrict or prohibit
disclosure.
25 (2) Records which
are privileged under the rules of evidence, unless
26 the holder of the privilege consents to the
disclosure.
27 (3) Medical,
psychiatric, psychological or alcoholism or drug depend-
28 ency treatment records which pertain to
identifiable patients.
29 (4) Personnel
records, performance ratings or individually identifia-
30 ble records pertaining to employees or
applicants for employment, except
31 that this exemption shall not apply to the
names, positions, salaries and
32 lengths of service of officers and
employees of public agencies once they
33 are employed as such.
34 (5) Information
which would reveal the identity of any undercover
35 agent or any informant reporting a specific
violation of law.
36 (6) Letters of
reference or recommendation pertaining to the char-
37 acter or qualifications of an identifiable
individual.
38 (7) Library,
archive and museum materials contributed by private
39 persons, to the extent of any limitations
imposed as conditions of the
40 contribution.
41 (8) Information
which would reveal the identity of an individual who
42 lawfully makes a donation to a public
agency, if anonymity of the donor
43 is a condition of the donation.
2
1 (9) Testing
and examination materials, before the test or examination
2 is given or if it is to be given
again, or records of individual test or ex-
3 amination scores, other than records
which show only passage or failure
4 and not specific scores.
5
(10) Criminal investigation records, except that the district
court, in
6 an action brought pursuant to K.S.A.
45-222, and amendments thereto,
7 may order disclosure of such records,
subject to such conditions as the
8 court may impose, if the court finds
that disclosure:
9 (A) Is in
the public interest;
10 (B) would not
interfere with any prospective law enforcement action;
11 (C) would not
reveal the identity of any confidential source or un-
12 dercover agent;
13 (D) would not
reveal confidential investigative techniques or proce-
14 dures not known to the general public;
15 (E) would not
endanger the life or physical safety of any person; and
16 (F) would not
reveal the name, address, phone number or any other
17 information which specifically and
individually identifies the victim of any
18 sexual offense in article 35 of chapter 21
of the Kansas Statutes Anno-
19 tated, and amendments thereto.
20 (11) Records of
agencies involved in administrative adjudication or
21 civil litigation, compiled in the process
of detecting or investigating vio-
22 lations of civil law or administrative
rules and regulations, if disclosure
23 would interfere with a prospective
administrative adjudication or civil
24 litigation or reveal the identity of a
confidential source or undercover
25 agent.
26 (12) Records of
emergency or security information or procedures of
27 a public agency, or plans, drawings,
specifications or related information
28 for any building or facility which is used
for purposes requiring security
29 measures in or around the building or
facility or which is used for the
30 generation or transmission of power, water,
fuels or communications, if
31 disclosure would jeopardize security of the
public agency, building or
32 facility.
33 (13) The contents
of appraisals or engineering or feasibility estimates
34 or evaluations made by or for a public
agency relative to the acquisition
35 of property, prior to the award of formal
contracts therefor.
36
(14) Correspondence between a public agency and a private
individ-
37 ual, other than correspondence which is
intended to give notice of an
38 action, policy or determination relating to
any regulatory, supervisory or
39 enforcement responsibility of the public
agency or which is widely dis-
40 tributed to the public by a public agency
and is not specifically in response
41 to communications from such a private
individual.
42 (15) Records
pertaining to employer-employee negotiations, if dis-
43 closure would reveal information discussed
in a lawful executive session
3
1 under K.S.A. 75-4319, and amendments
thereto.
2
(16) Software programs for electronic data processing and
documen-
3 tation thereof, but each public
agency shall maintain a register, open to
4 the public, that describes:
5 (A) The
information which the agency maintains on computer facil-
6 ities; and
7 (B) the
form in which the information can be made available using
8 existing computer programs.
9
(17) Applications, financial statements and other information
sub-
10 mitted in connection with applications for
student financial assistance
11 where financial need is a consideration for
the award.
12 (18) Plans,
designs, drawings or specifications which are prepared by
13 a person other than an employee of a public
agency or records which are
14 the property of a private person.
15 (19) Well
samples, logs or surveys which the state corporation com-
16 mission requires to be filed by persons who
have drilled or caused to be
17 drilled, or are drilling or causing to be
drilled, holes for the purpose of
18 discovery or production of oil or gas, to
the extent that disclosure is limited
19 by rules and regulations of the state
corporation commission.
20 (20) Notes,
preliminary drafts, research data in the process of anal-
21 ysis, unfunded grant proposals, memoranda,
recommendations or other
22 records in which opinions are expressed or
policies or actions are pro-
23 posed, except that this exemption shall not
apply when such records are
24 publicly cited or identified in an open
meeting or in an agenda of an open
25 meeting.
26 (21) Records of a
public agency having legislative powers, which re-
27 cords pertain to proposed legislation or
amendments to proposed legis-
28 lation, except that this exemption shall
not apply when such records are:
29 (A) Publicly
cited or identified in an open meeting or in an agenda
30 of an open meeting; or
31 (B) distributed
to a majority of a quorum of any body which has au-
32 thority to take action or make
recommendations to the public agency with
33 regard to the matters to which such records
pertain.
34 (22) Records of a
public agency having legislative powers, which re-
35 cords pertain to research prepared for one
or more members of such
36 agency, except that this exemption shall
not apply when such records are:
37 (A) Publicly
cited or identified in an open meeting or in an agenda
38 of an open meeting; or
39 (B) distributed
to a majority of a quorum of any body which has au-
40 thority to take action or make
recommendations to the public agency with
41 regard to the matters to which such records
pertain.
42 (23) Library
patron and circulation records which pertain to identi-
43 fiable individuals.
4
1
(24) Records which are compiled for census or research
purposes and
2 which pertain to identifiable
individuals.
3
(25) Records which represent and constitute the work product
of an
4 attorney.
5
(26) Records of a utility or other public service pertaining
to individ-
6 ually identifiable residential
customers of the utility or service, except that
7 information concerning billings for
specific individual customers named
8 by the requester shall be subject to
disclosure as provided by this act.
9
(27) Specifications for competitive bidding, until the
specifications
10 are officially approved by the public
agency.
11 (28) Sealed bids
and related documents, until a bid is accepted or all
12 bids rejected.
13 (29) Correctional
records pertaining to an identifiable inmate or re-
14 lease, except that:
15 (A) The name;
photograph and other identifying information; sen-
16 tence data; parole eligibility date;
custody or supervision level; disciplinary
17 record; supervision violations; conditions
of supervision, excluding
18 requirements pertaining to mental health or
substance abuse counseling;
19 location of facility where incarcerated or
location of parole office main-
20 taining supervision and address of a
releasee whose crime was committed
21 after the effective date of this act shall
be subject to disclosure to any
22 person other than another inmate or
releasee, except that the disclosure
23 of the location of an inmate transferred to
another state pursuant to the
24 interstate corrections compact shall be at
the discretion of the secretary
25 of corrections;
26 (B) the ombudsman
of corrections, the attorney general, law enforce-
27 ment agencies, counsel for the inmate to
whom the record pertains and
28 any county or district attorney shall have
access to correctional records to
29 the extent otherwise permitted by law;
30 (C) the
information provided to the law enforcement agency pursu-
31 ant to the sex offender registration act,
K.S.A. 22-4901, et seq., and
32 amendments thereto, shall be subject to
disclosure to any person, except
33 that the name, address, telephone number or
any other information which
34 specifically and individually identifies
the victim of any offender required
35 to register as provided by the Kansas
offender registration act, K.S.A. 22-
36 4901 et seq. and amendments thereto,
shall not be disclosed; and
37 (D) records of
the department of corrections regarding the financial
38 assets of an offender in the custody of the
secretary of corrections shall
39 be subject to disclosure to the victim, or
such victim's family, of the crime
40 for which the inmate is in custody as set
forth in an order of restitution
41 by the sentencing court.
42 (30) Public
records containing information of a personal nature
43 where the public disclosure thereof would
constitute a clearly unwar-
5
1 ranted invasion of personal
privacy.
2 (31) Public
records pertaining to prospective location of a business
3 or industry where no previous public
disclosure has been made of the
4 business' or industry's interest in
locating in, relocating within or expand-
5 ing within the state. This exception
shall not include those records per-
6 taining to application of agencies
for permits or licenses necessary to do
7 business or to expand business
operations within this state, except as
8 otherwise provided by law.
9 (32) The
bidder's list of contractors who have requested bid proposals
10 for construction projects from any public
agency, until a bid is accepted
11 or all bids rejected.
12 (33) Engineering
and architectural estimates made by or for any pub-
13 lic agency relative to public
improvements.
14 (34) Financial
information submitted by contractors in qualification
15 statements to any public agency.
16 (35) Records
involved in the obtaining and processing of intellectual
17 property rights that are expected to be,
wholly or partially vested in or
18 owned by a state educational institution,
as defined in K.S.A. 76-711, and
19 amendments thereto, or an assignee of the
institution organized and ex-
20 isting for the benefit of the
institution.
21 (36) Any report
or record which is made pursuant to K.S.A. 65-4922,
22 65-4923 or 65-4924, and amendments thereto,
and which is privileged
23 pursuant to K.S.A. 65-4915 or 65-4925, and
amendments thereto.
24 (37) Information
which would reveal the precise location of an ar-
25 cheological site.
26 (38) Any
financial data or traffic information from a railroad company,
27 to a public agency, concerning the sale,
lease or rehabilitation of the
28 railroad's property in Kansas.
29 (39) Risk-based
capital reports, risk-based capital plans and corrective
30 orders including the working papers and the
results of any analysis filed
31 with the commissioner of insurance in
accordance with K.S.A. 1999 Supp.
32 40-2c20, and amendments thereto.
33 (40) Memoranda
and related materials required to be used to support
34 the annual actuarial opinions submitted
pursuant to subsection (b) of
35 K.S.A. 40-409, and amendments thereto.
36 (41) Disclosure
reports filed with the commissioner of insurance un-
37 der subsection (a) of K.S.A. 1999 Supp.
40-2,156, and amendments
38 thereto.
39 (42) All
financial analysis ratios and examination synopses concerning
40 insurance companies that are submitted to
the commissioner by the na-
41 tional association of insurance
commissioners' insurance regulatory infor-
42 mation system.
43 (43) Any records
the disclosure of which is restricted or prohibited
6
1 by a tribal-state gaming compact.
2 (44) Market
research, market plans, business plans and the terms and
3 conditions of managed care or other
third party contracts, developed or
4 entered into by the university of
Kansas medical center in the operation
5 and management of the university
hospital which the chancellor of the
6 university of Kansas or the
chancellor's designee determines would give
7 an unfair advantage to competitors of
the university of Kansas medical
8 center.
9 (b) Except
to the extent disclosure is otherwise required by law or as
10 appropriate during the course of an
administrative proceeding or on ap-
11 peal from agency action, a public agency or
officer shall not disclose fi-
12 nancial information of a taxpayer which may
be required or requested by
13 a county appraiser or the director of
property valuation to assist in the
14 determination of the value of the
taxpayer's property for ad valorem tax-
15 ation purposes; or any financial
information of a personal nature required
16 or requested by a public agency or officer,
including a name, job descrip-
17 tion or title revealing the salary or other
compensation of officers, em-
18 ployees or applicants for employment with a
firm, corporation or agency,
19 except a public agency. Nothing contained
herein shall be construed to
20 prohibit the publication of statistics, so
classified as to prevent identifi-
21 cation of particular reports or returns and
the items thereof.
22 (c) As used in
this section, the term "cited or identified" shall not
23 include a request to an employee of a
public agency that a document be
24 prepared.
25 (d) If a public
record contains material which is not subject to dis-
26 closure pursuant to this act, the public
agency shall separate or delete
27 such material and make available to the
requester that material in the
28 public record which is subject to
disclosure pursuant to this act. If a public
29 record is not subject to disclosure because
it pertains to an identifiable
30 individual, the public agency shall delete
the identifying portions of the
31 record and make available to the requester
any remaining portions which
32 are subject to disclosure pursuant to this
act, unless the request is for a
33 record pertaining to a specific individual
or to such a limited group of
34 individuals that the individuals'
identities are reasonably ascertainable, the
35 public agency shall not be required to
disclose those portions of the record
36 which pertain to such individual or
individuals.
37 (e) The
provisions of this section shall not be construed to exempt
38 from public disclosure statistical
information not descriptive of any iden-
39 tifiable person.
40
(f) Notwithstanding the provisions of subsection (a), any
public rec-
41 ord which has been in existence more than
70 years shall be open for
42 inspection by any person unless disclosure
of the record is specifically
43 prohibited or restricted by federal law,
state statute or rule of the Kansas
7
1 supreme court or by a policy adopted
pursuant to K.S.A. 72-6214, and
2 amendments thereto.
3 (g) The
provisions of this section shall expire on July 1, 2005.
4 New Sec.
3. (a) It is the intent of the legislature that exceptions
to
5 disclosure under the open records act
shall be created or maintained only
6 if:
7 (1) The
record is of a sensitive or personal nature concerning
8 individuals;
9 (2) the
record is necessary for the effective and efficient administra-
10 tion of a governmental program; or
11 (3) the public
records affects confidential information.
12 The maintenance or
creation of an exception to disclosure must be
13 compelled as measured by these criteria.
Further, the legislature finds
14 that the public has a right to have access
to public records unless the
15 criteria in this section for restricting
such access to a public record are
16 met and the criteria are considered during
legislative review in connection
17 with the particular exception to disclosure
to be significant enough to
18 override the strong public policy of open
government. To strengthen the
19 policy of open government, the legislature
shall consider the criteria in
20 this section before enacting an exception
to disclosure.
21 (b) Any new
exception to disclosure or substantial amendment of an
22 existing exception shall expire on July 1
of the fifth year after enactment
23 of the new exception or substantial
amendment, unless the legislature
24 acts to reenact the exception. A law that
enacts a new exception or sub-
25 stantially amends an existing exception
shall state that the exception ex-
26 pires at the end of five years and that the
exception shall be reviewed by
27 the legislature before the scheduled
date.
28 (c) For purposes
of this section, an exception is substantially amended
29 if the amendment expands the scope of the
exception to include more
30 records or information. An exception is not
substantially amended if the
31 amendment narrows the scope of the
exception.
32 (d) This section
is not intended to repeal an exception that has been
33 amended following legislative review before
the scheduled repeal of the
34 exception if the exception is not
substantially amended as a result of the
35 review.
36 (e) In the year
before the expiration of an exception, the revisor of
37 statutes shall certify to the president of
the senate and the speaker of the
38 house of representatives, by June 1, the
language and statutory citation
39 of each exception which will expire in the
following year which meets the
40 criteria of an exception as defined in this
section. Any exception that is
41 not identified and certified to the
president of the senate and the speaker
42 of the house of representatives is not
subject to legislative review and
43 shall not expire. If the revisor of
statutes fails to certify an exception that
8
1 the revisor subsequently determines
should have been certified, the re-
2 visor shall include the exception in
the following year's certification after
3 that determination.
4
(f) "Exception" means a provision of law which creates an
exception
5 to the open records act.
6 (g) A
provision of law which creates or amends an exception to dis-
7 closure under the open records law
shall not be subject to review and
8 expiration under this act if such
provision:
9 (1) Is
required by federal law;
10 (2) applies
solely to the legislature or to the state court system.
11 (h) (1) The
legislature shall review the exception before its scheduled
12 expiration and consider as part of the
review process the following:
13 (A) What specific
records are affected by the exception;
14 (B) whom does the
exception uniquely affect, as opposed to the gen-
15 eral public;
16 (C) what is the
identifiable public purpose or goal of the exception;
17 (D) whether the
information contained in the records be readily ob-
18 tained by alternative means and how it may
be obtained;
19 (2) An exception
may be created or maintained only if it serves an
20 identifiable public purpose and may be no
broader than is necessary to
21 meet the public purpose it serves. An
identifiable public purpose is served
22 if the exception meets one of the following
purposes and the legislature
23 finds that the purpose is sufficiently
compelling to override the strong
24 public policy of open government and cannot
be accomplished with the
25 exception:
26 (A) Allows the
effective and efficient administration of a govern-
27 mental program, which administration would
be significantly impaired
28 without the exception;
29 (B) protects
information of a sensitive personal nature concerning
30 individuals, the release of which
information would be defamatory to such
31 individuals or cause unwarranted damage to
the good name or reputation
32 of such individuals or would jeopardize the
safety of such individuals.
33 Only information that would identify the
individuals may be excepted
34 under this paragraph; or
35 (C) protects
information of a confidential nature concerning entities,
36 including, but not limited to, a formula,
pattern, device, combination of
37 devices, or compilation of information
which is used to protect or further
38 a business advantage over those who do not
know or use it, the disclosure
39 of which information would injure the
affected entity in the marketplace.
40 (3) Records made
before the date of the expiration of an exception
41 may not be made public unless otherwise
provided by law. In deciding
42 whether the records shall be made public,
the legislature shall consider
43 whether the damage or loss to persons or
entities uniquely affected the
9
1 exception of the type specified in
paragraph (2)(B) or (2)(C) of this sub-
2 section (h) would occur if the
records were made public.
3 Sec. 4. K.S.A. 45-215 and
K.S.A. 1999 Supp. 45-221 are hereby
4 repealed.
5 Sec. 5. This act
shall take effect and be in force from and after its
6 publication in the statute book.