[As Amended by House Committee of the Whole]          

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Session of 2000
          Substitute for HOUSE BILL No. 2864           By Committee on Local Government           3-21          

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10             AN  ACT concerning the open records act; concerning the open meetings
11             act; establishing the position of public information officer; prescribing
12             the powers and duties thereof; amending K.S.A. 45-215, 45-218, 45-
13             220, 45-222, 45-223, 75-4317a, 75-4318, 75-4320 and 75-4320a and
14             K.S.A. 1999 Supp. 45-217, 45-219, 45-221, 75-4317 and 75-4319 and
15             repealing the existing sections.
16      
17       Be it enacted by the Legislature of the State of Kansas:
18             New Section  1. (a) There is hereby created within the office of the
19       attorney general the position of public information officer. The public
20       information officer shall be appointed by the attorney general within the
21       current unclassified positions authorized for the office of attorney general.
22       The public information officer shall serve at the pleasure of the attorney
23       general.
24             (b) The public information officer or the public information officer's
25       designee shall:
26             (1) Prepare and provide educational materials and information con-
27       cerning this act, the open records act and the open meetings act.
28             (2) Be available to assist public bodies and agencies and members of
29       the general public to resolve disputes relating to the open records act and
30       the open meetings act in an informal procedure as authorized by section
31       3, and amendments thereto.
32             (3) Respond to inquiries relating to this act, the open records act and
33       the open meetings act.
34             (4) Issue advisory opinions, when requested upon all questions of law
35       relating to this act, the open records act and the open meetings act.
36             (5) Establish the requirements for the content, size, shape and other
37       physical characteristics of a sign required to be displayed under the open
38       records act. In establishing such requirements for the content of the sign,
39       the public information officer shall include plainly written basic infor-
40       mation about the rights of a requestor, the responsibilities of a public
41       agency and the procedures for inspecting and obtaining a copy of public
42       records under the open records act.
43             (6) Establish the requirements for the content, size, shape and other

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  1       physical characteristics of a sign required to be displayed under the open
  2       meetings act. In establishing such requirements for the content of the
  3       sign, the public information officer shall include plainly written basic in-
  4       formation about the rights of the public, the responsibilities of a public
  5       body or agency and the procedure for obtaining notice under the open
  6       meetings act.
  7             (7) Conduct hearings on complaints of alleged violations of the open
  8       records act and the open meetings act as provided by section 2, and
  9       amendments thereto.
10             (8) Impose fines and penalties and award attorney fees as authorized
11       by section 2, and amendments thereto, for violations of the open records
12       act and the open meetings act.
13             (9) Determine, pursuant to subsection (c)(5) of K.S.A. 45-219, and
14       amendments thereto, whether amounts charged for public records are
15       reasonable.
16             (10) Adopt rules and regulations necessary to implement the provi-
17       sions of this act, the open records act and the open meetings act.
18             (11) Perform all other duties as may be necessary to carry out the
19       purposes of this act, the open records act and the open meetings act and
20       any other duties as otherwise may be prescribed by law.
21             (c) The public information officer shall not be subject to suit for any
22       action or failure to act under this act, the open records act or the open
23       meetings act.
24             New Sec.  2. (a) An assistant or deputy attorney general who is under
25       a separate line of direct supervision from the public information officer,
26       any [Any] county or district attorney or any person aggrieved by an al-
27       leged violation of the open records act or the open meetings act may file
28       a verified complaint with the public information officer. Such complaints
29       shall be in writing, shall state the facts upon which the allegations are
30       based and shall contain such other information and be in such form as
31       the public information officer may require. Complaints shall be filed
32       within 45 days after the alleged violation occurred, but may be amended
33       with the approval of the public information officer. A respondent may file
34       a verified answer to the complaint against the respondent and with the
35       leave of the public information officer, may amend the answer filed by
36       the respondent at any time.
37             (b) Upon receipt of any such complaint, the public information offi-
38       cer shall serve notice upon the aggrieved person acknowledging such
39       filing and advising the aggrieved person of the time limits and choice of
40       forums provided under this act. Within 10 days of the filing of the com-
41       plaint, the public information officer shall serve on the respondent a no-
42       tice identifying the alleged violation and advising such respondent of the
43       procedural rights and obligations of respondents under this act, together

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  1       with a copy of the original complaint. Service of the notice shall be made
  2       in the manner prescribed by the code of civil procedure.
  3             (c) A person who is not named as a respondent in a complaint, but
  4       who is identified as a respondent in the course of investigation, may be
  5       joined as an additional or substitute respondent upon written notice, un-
  6       der subsections (a) and (b), to such person, from the public access officer.
  7             (d)  (1) In investigating alleged violations of the Kansas open meet-
  8       ings act or the Kansas open records act the public information officer
  9       may:
10             (1) Subpoena witnesses, evidence, documents or other matter;
11             (2) take testimony under oath;
12             (3) examine or cause to be examined any documentary material of
13       whatever nature relevant to such alleged violations;
14             (4) require attendance during such examination of documentary ma-
15       terial and take testimony under oath or acknowledgment in respect of
16       any such documentary material; and
17             (5) serve interrogatories.
18             (e) [(d)] Hearings before the public access officer shall be conducted
19       in accordance with the provisions of the Kansas administrative procedure
20       act and shall be subject to review and enforcement in accordance with
21       the act for judicial review and civil enforcement of agency actions. A
22       decision by the public information officer shall be considered the final
23       agency action. Appeals of such decisions shall be made to the district
24       court in accordance with the act for judicial review and civil enforcement
25       of agency actions and not to the attorney general.
26             (f) [(e)] The public information officer may review the records in
27       camera in any action concerning records, and the records shall not be
28       subject to disclosure or open to public inspection unless the officer finds
29       them to be open and the time for appeal has run. [Actions taken under
30       this subsection shall be subject to the provisions of the lawyer-
31       client privilege described in K.S.A. 60-426 and amendments
32       thereto.]
33             (g) The public information officer may review the tape or recording
34       of any closed or executive session which is the subject of investigation. If
35       the public information officer finds a violation has occurred, that portion
36       of such tape or recording of the closed or executive session which should
37       have been open shall be open for public inspection. [Actions taken un-
38       der this subsection shall be subject to the provisions of the lawyer-
39       client privilege described in K.S.A. 60-426 and amendments
40       thereto.[
41             (h) [(f)] Unless otherwise agreed to by the parties, the public infor-
42       mation officer shall render a decision on the complaint within 45 days of
43       the date on which the answer to such complaint was filed. Following such

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  1       hearing and if the public information officer determines there has been
  2       a violation of the open records act or the open meetings act and such
  3       violation was not committed in good faith and without a reasonable basis
  4       in fact of law, the public information officer may:
  5             (1) Award attorney fees to the person filing the complaint. Attorney
  6       fees shall not be awarded against a public body or agency if such body or
  7       agency acted in compliance with an opinion issued by the public infor-
  8       mation officer; and
  9             (2) impose a civil penalty not to exceed $500 against the public body
10       or agency. The public information officer shall remit all moneys received
11       pursuant to this section to the state treasurer. The state treasurer shall
12       deposit such moneys in the state treasury as provided in section 5, and
13       amendments thereto.
14             (i) [(g)] The public information officer may assess the cost of the
15       proceedings conducted pursuant to this section against the parties to such
16       proceedings.
17             (j) In lieu of filing a complaint with the public information officer, an
18       action may be brought directly with the district court as provided by the
19       open records act and the open meetings act with no requirement that
20       administrative remedies be exhausted.
21             New Sec.  3. The public information officer may establish an informal
22       procedure for resolving disputes relating to alleged violations of the open
23       records act and the open meetings act.
24             New Sec.  4. (a) At the request of any person, the public information
25       officer may issue advisory opinions relating to this act, the open records
26       act and the open meetings act and the enforcement thereof. The com-
27       pliance by a governmental agency or body with an advisory opinion shall
28       preclude the imposition of fines, penalties or attorney fees against such
29       agency or body in any proceeding before the public information officer
30       or a court or in any subsequent appeal. The public information officer
31       shall cause to be published on the internet and otherwise[, advisory]
32       opinions, decisions, orders and related materials issued or provided by
33       the public information officer. Copies of such [advisory] opinions shall
34       be filed in the same manner provided by K.S.A. 75-704a, and amend-
35       ments thereto, for the filing of [advisory] opinions issued by the attorney
36       general.
37             (b) The public information officer shall not issue an [advisory] opin-
38       ion on any specific issue which is the subject of ongoing litigation.
39             New Sec.  5. (a) There is hereby established the open records and
40       open meetings enforcement fund in the state treasury which shall be
41       administered by the public information officer. All moneys collected for
42       fines and penalties under the open records act or the open meetings act
43       shall be deposited in the state treasury to the credit of the open records

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  1       and open meetings enforcement fund. Moneys in the open records and
  2       open meetings enforcement fund shall be used to pay the costs of pro-
  3       viding educational information and material to public bodies and agencies
  4       and to the public concerning this act, the open records act and the open
  5       meetings act. All expenditures from the open records and open meetings
  6       fund shall be made in accordance with appropriation acts upon warrants
  7       of the director of accounts and reports issued pursuant to vouchers ap-
  8       proved by the public information officer or the public information offi-
  9       cer's designee.
10             (b) On or before the 10th of each month, the director of accounts
11       and reports shall transfer from the state general fund to the open records
12       and open meetings fund interest earnings based on:
13             (1) The average daily balance of moneys in the open records and open
14       meetings fund for the preceding month; and
15             (2) the net earnings rate of the pooled money investment portfolio
16       for the preceding month.
17             Sec.  6. K.S.A. 45-215 is hereby amended to read as follows: 45-215.
18       K.S.A. 45-215 through 45-223 45-225, and sections 12 and 15 [16], and
19       amendments thereto, shall be known and may be cited as the open records
20       act.
21             Sec.  7. K.S.A. 1999 Supp. 45-217 is hereby amended to read as fol-
22       lows: 45-217. As used in the open records act, unless the context other-
23       wise requires:
24             (a) ``Business day'' means any day other than a Saturday, Sunday or
25       day designated as a holiday by the congress of the United States, by the
26       legislature or governor of this state or by the respective political subdi-
27       vision of this state.
28             (b) ``Criminal investigation records'' means records of an investiga-
29       tory agency or criminal justice agency as defined by K.S.A. 22-4701, and
30       amendments thereto, compiled in the process of preventing, detecting or
31       investigating violations of criminal law, but does not include police blotter
32       entries, court records, rosters of inmates of jails or other correctional or
33       detention facilities or records pertaining to violations of any traffic law
34       other than vehicular homicide as defined by K.S.A. 21-3405, and amend-
35       ments thereto.
36             (c) ``Custodian'' means the official custodian or any person designated
37       by the official custodian to carry out the duties of custodian of this act.
38             (d) ``Official custodian'' means any officer or employee of a public
39       agency who is responsible for the maintenance of public records, regard-
40       less of whether such records are in the officer's or employee's actual
41       personal custody and control.
42             (e) ``Public information officer'' means the public access officer ap-
43       pointed pursuant to section 1, and amendments thereto.

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  1             (e) (f)  (1) ``Public agency'' means: the
  2        [(A) The] state or any political or taxing subdivision of the state or any
  3       office, officer, agency or instrumentality thereof, or any other entity re-
  4       ceiving or expending and supported in whole or in part by the public
  5       funds appropriated by the state or by public funds of any political or taxing
  6       subdivision of the state.
  7             (2) ``Public agency'' shall not include:
  8             (A) Any entity solely by reason of payment from public funds for
  9       property, goods or services of such entity; (B) any municipal judge, judge
10       of the district court, judge of the court of appeals or justice of the supreme
11       court; or (C) any officer or employee of the state or political or taxing
12       subdivision of the state if the state or political or taxing subdivision does
13       not provide the officer or employee with an office which is open to the
14       public at least 35 hours a week.
15             (f) (g)  (1) ``Public record'' means any recorded information, regard-
16       less of form or characteristics, which is made, maintained or kept by or
17       is in the possession of any public agency including, but not limited to, an
18       agreement in settlement of litigation involving the Kansas public em-
19       ployees retirement system and the investment of moneys of the fund.
20             (2) ``Public record'' shall not include records which are owned by a
21       private person or entity and are not related to functions, activities, pro-
22       grams or operations funded by public funds or records which are made,
23       maintained or kept by an individual who is a member of the legislature
24       or of the governing body of any political or taxing subdivision of the state.
25             (3) ``Public record'' shall not include records of employers related to
26       the employer's individually identifiable contributions made on behalf of
27       employees for workers compensation, social security, unemployment in-
28       surance or retirement. The provisions of this subsection shall not apply
29       to records of employers of lump-sum payments for contributions as de-
30       scribed in this subsection paid for any group, division or section of an
31       agency.
32             (g) (h) ``Undercover agent'' means an employee of a public agency
33       responsible for criminal law enforcement who is engaged in the detection
34       or investigation of violations of criminal law in a capacity where such
35       employee's identity or employment by the public agency is secret.
36             Sec.  8. K.S.A. 45-218 is hereby amended to read as follows: 45-218.
37       (a) Except as otherwise provided by law, all public records shall be open
38       for inspection by any person, except as otherwise provided by this act,
39       and. Suitable facilities shall be made available by each public agency for
40       this such purpose. No person shall removal remove original copies of
41       public records from the office of any public agency without the written
42       permission of the custodian of the record.
43             (b) Upon request in accordance with procedures adopted under

7
  1       K.S.A. 45-220, and amendments thereto, any person may inspect public
  2       records during the regular office hours of the public agency and during
  3       any additional hours established by the public agency pursuant to K.S.A.
  4       45-220, and amendments thereto.
  5             (c) If the person to whom the request is directed is not the custodian
  6       of the public record requested, such person shall so notify the requester
  7       and shall furnish the name and location of the custodian of the public
  8       record, if known to or readily ascertainable by such person.
  9             (d) Except as provided by this section, and subsection (d) of K.S.A.
10       45-220, and amendments thereto, each request for access to a public rec-
11       ord shall be acted upon as soon as possible, but not later than the end of
12       the third business day following the date that [processed] at the time the
13       request is received. If the record is not on-site, the records shall be re-
14       trieved not later than the end of the third business day following the date
15       that the request is received. If the record must be constructed and pre-
16       pared, the record shall be available not later than the end of the seventh
17       business day following the date that the request is received. If access to
18       the public record is not granted immediately [or cannot be granted as
19       required by this section], the custodian shall give a detailed explanation
20       of the cause for further delay and the place and earliest time and date
21       that the record will be available for inspection. If the request for access
22       is denied [or delayed], the custodian shall provide, upon request, a writ-
23       ten statement of the grounds for denial [or the reason for the delay].
24       Such statement shall cite the specific provision of law under which access
25       is denied and shall be furnished to the requester of the public record not
26       later than the end of the third business day following the date that the
27       request for the statement is received.
28             (e) The custodian may refuse to provide access to a public record, or
29       to permit inspection, if a request places an unreasonable burden in pro-
30       ducing public records or if the custodian has reason [reasonable cause]
31       to believe that repeated requests are intended to disrupt other essential
32       functions of the public agency. However, refusal under this subsection
33       must be sustained by preponderance of the clear and convincing [pre-
34       ponderance of the] evidence.
35             (f) A public agency may charge and require advance payment of a fee
36       for providing access to or furnishing copies of public records, subject to
37       K.S.A. 45-219, and amendments thereto.
38             Sec.  9. K.S.A. 1999 Supp. 45-219 is hereby amended to read as fol-
39       lows: 45-219. (a) Any person may make abstracts or obtain copies of any
40       public record to which such person has access under this act. If copies
41       are requested, the public agency may require a written request and ad-
42       vance payment at the time of the request of the prescribed fee. A public
43       agency shall not be required to provide copies of radio or recording tapes

8
  1       or discs, video tapes or films, pictures, slides, graphics, illustrations or
  2       similar audio or visual items or devices, unless such items or devices were
  3       shown or played to a public meeting of the governing body thereof, but
  4       the public agency shall not be required to provide such items or devices
  5       which are copyrighted by a person other than the public agency.
  6             (b) Copies of public records shall be made at the time of the request
  7       and while the records are in the possession, custody and control of the
  8       custodian or a person designated by the custodian and shall be made
  9       under the supervision of such custodian or person. When practical, copies
10       shall be made in the place where the records are kept. If it is impractical
11       to do so, the custodian shall allow reasonable arrangements to be made
12       for use of other facilities on a timely basis. If it is necessary to use other
13       facilities for copying, the cost thereof shall be paid by the person desiring
14       a copy of the records. In addition, the public agency may charge the same
15       fee for the services rendered in supervising the copying as for furnishing
16       copies under subsection (c) and may establish a reasonable schedule of
17       times for making copies at other facilities.
18             (c) Except as provided by subsection (f) this section or where fees for
19       inspection or for copies of a public record are prescribed by statute, each
20       public agency may prescribe reasonable fees for providing access to or
21       furnishing copies of public records, subject to the following:
22             (1) In the case of fees for copies of records, the fees shall not exceed
23       the actual cost of furnishing copies, including the cost of staff time re-
24       quired to make the information available.
25             (2) In the case of fees for providing access to records maintained on
26       computer facilities, the fees shall include only the cost of any computer
27       services, including staff time required.
28             (3) Fees for access to or copies of public records of public agencies
29       within the legislative branch of the state government shall be established
30       in accordance with K.S.A. 46-1207a, and amendments thereto.
31             (4) Fees for access to or copies of public records of public agencies
32       within the judicial branch of the state government shall be established in
33       accordance with rules of the supreme court.
34             (5) Fees for access to or copies of public records of a public agency
35       within the executive branch of the state government shall be established
36       by the agency head. Any person requesting records may appeal the rea-
37       sonableness of the fees charged for providing access to or furnishing cop-
38       ies of such records to the secretary of administration public information
39       officer whose decision shall be final. A fee for copies of public records
40       which is equal to or less than $.25 per page shall be deemed a reasonable
41       fee.
42             (d) Except as otherwise authorized pursuant to K.S.A. 75-4215, and
43       amendments thereto, each public agency within the executive branch of

9
  1       the state government shall remit all moneys received by or for it from
  2       fees charged pursuant to this section to the state treasurer in accordance
  3       with K.S.A. 75-4215, and amendments thereto. Unless otherwise specif-
  4       ically provided by law, the state treasurer shall deposit the entire amount
  5       thereof in the state treasury and credit the same to the state general fund
  6       or an appropriate fee fund as determined by the agency head.
  7             (e) Each public agency of a political or taxing subdivision shall remit
  8       all moneys received by or for it from fees charged pursuant to this act to
  9       the treasurer of such political or taxing subdivision at least monthly. Upon
10       receipt of any such moneys, such treasurer shall deposit the entire amount
11       thereof in the treasury of the political or taxing subdivision and credit the
12       same to the general fund thereof, unless otherwise specifically provided
13       by law.
14             (f) Any person who is a certified shorthand reporter may charge fees
15       for transcripts of such person's notes of judicial or administrative pro-
16       ceedings in accordance with rates established pursuant to rules of the
17       Kansas supreme court.
18             Sec.  10. K.S.A. 45-220 is hereby amended to read as follows: 45-220.
19       (a) Each public agency shall adopt procedures to be followed in request-
20       ing access to and obtaining copies of public records, which procedures
21       shall provide full access to public records, protect public records from
22       damage and disorganization, prevent excessive disruption of the agency's
23       essential functions, provide assistance and information upon request and
24       insure efficient and timely action in response to applications for inspec-
25       tion of public records.
26             (b) A public agency may require a written request for inspection of
27       public records but shall not otherwise require a request to be made in
28       any particular form. Except as otherwise provided by subsection (c), a
29       public agency shall not require that a request contain more information
30       than the requester's name and address and the information necessary to
31       ascertain the records to which the requester desires access and the re-
32       quester's right of access to the records. A public agency may require proof
33       of identity of any person requesting access to a public record. No request
34       shall be returned, delayed or denied because of any technicality unless it
35       is impossible to determine the records to which the requester desires
36       access.
37             (c) If access to public records of an agency or the purpose for which
38       the records may be used is limited pursuant to K.S.A. 21-3914 or 45-221,
39       and amendments thereto, the agency may require a person requesting
40       the records or information therein to provide written certification that:
41             (1) The requester has a right of access to the records and the basis
42       of that right; or
43             (2) the requester does not intend to, and will not: (A) Use any list of

10
  1       names or addresses contained in or derived from the records or infor-
  2       mation for the purpose of selling or offering for sale any property or
  3       service to any person listed or to any person who resides at any address
  4       listed; or (B) sell, give or otherwise make available to any person any list
  5       of names or addresses contained in or derived from the records or infor-
  6       mation for the purpose of allowing that person to sell or offer for sale any
  7       property or service to any person listed or to any person who resides at
  8       any address listed.
  9             (d) A public agency shall establish, for business days when it does not
10       maintain regular office hours, reasonable hours when persons may inspect
11       and obtain copies of the agency's records. The public agency may require
12       that any person desiring to inspect or obtain copies of the agency's records
13       during such hours so notify the agency, but such notice shall not be re-
14       quired to be in writing and shall not be required to be given more than
15       24 hours prior to the hours established for inspection and obtaining
16       copies.
17             (e) Each official custodian of public records shall designate such per-
18       sons as necessary to carry out the duties of custodian under this act and
19       shall ensure that a custodian is available during regular business hours of
20       the public agency to carry out such duties.
21             (f) Each public agency shall provide, upon request of any person, the
22       following information:
23             (1) The principal office of the agency, its regular office hours and any
24       additional hours established by the agency pursuant to subsection (c).
25             (2) The title and address of the official custodian of the agency's re-
26       cords and of any other custodian who is ordinarily available to act on
27       requests made at the location where the information is displayed.
28             (3) The fees, if any, charged for access to or copies of the agency's
29       records.
30             (4) The procedures to be followed in requesting access to and ob-
31       taining copies of the agency's records, including procedures for giving
32       notice of a desire to inspect or obtain copies of records during hours
33       established by the agency pursuant to subsection (c).
34             (g) The official custodian of a public agency shall display [at the
35       central administrative office of the public agency] a sign a con-
36       spicuous place at the principal office of the public agency a notice]
37       that contains basic information about the rights of a requestor, the re-
38       sponsibilities of a public agency and the procedures for inspecting or
39       obtaining a copy of public information under the open records act. [Such
40       notice may, but shall not be required to, be similarly posted at any
41       other office of or place in such public agency.] The official custodian
42       shall display the sign at one or more places in the administrative offices
43       of the public agency where such sign clearly will be visible to: (1) Members

11
  1       of the public who request public information in person under the open
  2       records act; and (2) employees of the public agency whose duties include
  3       receiving or responding to requests under this act. Such sign shall conform
  4       to the requirements prescribed by the public information officer.
  5             Sec.  11. K.S.A. 1999 Supp. 45-221 is hereby amended to read as
  6       follows: 45-221. (a) Subject to the provisions of section 12, and amend-
  7       ments thereto, and except to the extent disclosure is otherwise required
  8       by law, a public agency shall not be required to disclose:
  9             (1) Records the disclosure of which is specifically prohibited or re-
10       stricted by federal law, state statute or rule of the Kansas supreme court
11       or the disclosure of which is prohibited or restricted pursuant to specific
12       authorization of federal law, state statute or rule of the Kansas supreme
13       court to restrict or prohibit disclosure.
14             (2) Records which are privileged under the rules of evidence, unless
15       the holder of the privilege consents to the disclosure.
16             (3) Medical, psychiatric, psychological or alcoholism or drug depend-
17       ency treatment records which pertain to identifiable patients.
18             (4) Personnel records, performance ratings or individually identifia-
19       ble records pertaining to employees or applicants for employment, except
20       that this exemption shall not apply to the names, positions, salaries and
21       lengths of service of officers and employees of public agencies once they
22       are employed as such.
23             (5) Information which would reveal the identity of any undercover
24       agent or any informant reporting a specific violation of law.
25             (6) Letters of reference or recommendation pertaining to the char-
26       acter or qualifications of an identifiable individual.
27             (7) Library, archive and museum materials contributed by private
28       persons, to the extent of any limitations imposed as conditions of the
29       contribution.
30             (8) Information which would reveal the identity of an individual who
31       lawfully makes a donation to a public agency, if anonymity of the donor
32       is a condition of the donation.
33             (9) Testing and examination materials, before the test or examination
34       is given or if it is to be given again, or records of individual test or ex-
35       amination scores, other than records which show only passage or failure
36       and not specific scores.
37             (10) Criminal investigation records, except that. The district court, in
38       an action brought pursuant to K.S.A. 45-222, and amendments thereto,
39       may order disclosure of such records, subject to such conditions as the
40       court may impose, if the court finds that disclosure:
41             (A) Is in the public interest;
42             (B) would not interfere with any prospective law enforcement action;
43             (C) would not reveal the identity of any confidential source or un-

12
  1       dercover agent;
  2             (D) would not reveal confidential investigative techniques or proce-
  3       dures not known to the general public;
  4             (E) would not endanger the life or physical safety of any person; and
  5             (F) would not reveal the name, address, phone number or any other
  6       information which specifically and individually identifies the victim of any
  7       sexual offense in article 35 of chapter 21 of the Kansas Statutes Anno-
  8       tated, and amendments thereto.
  9             (11) Records of agencies involved in administrative adjudication or
10       civil litigation, compiled in the process of detecting or investigating vio-
11       lations of civil law or administrative rules and regulations, if disclosure
12       would interfere with a prospective administrative adjudication or civil
13       litigation or reveal the identity of a confidential source or undercover
14       agent.
15             (12) Records of emergency or security information or procedures of
16       a public agency, or plans, drawings, specifications or related information
17       for any building or facility which is used for purposes requiring security
18       measures in or around the building or facility or which is used for the
19       generation or transmission of power, water, fuels or communications, if
20       disclosure would jeopardize security of the public agency, building or
21       facility.
22             (13) The contents of appraisals or engineering or feasibility estimates
23       or evaluations made by or for a public agency relative to the acquisition
24       of property, prior to the award of formal contracts therefor.
25             (14) Correspondence between a public agency and a private individ-
26       ual, other than correspondence which is intended to give notice of an
27       action, policy or determination relating to any regulatory, supervisory or
28       enforcement responsibility of the public agency or which is widely dis-
29       tributed to the public by a public agency and is not specifically in response
30       to communications from such a private individual.
31             (15) Records pertaining to employer-employee negotiations, if dis-
32       closure would reveal information discussed in a lawful executive session
33       under K.S.A. 75-4319, and amendments thereto.
34             (16) Software programs for electronic data processing and documen-
35       tation thereof, but each public agency shall maintain a register, open to
36       the public, that describes:
37             (A) The information which the agency maintains on computer facil-
38       ities; and
39             (B) the form in which the information can be made available using
40       existing computer programs.
41             (17) Applications, financial statements and other information sub-
42       mitted in connection with applications for student financial assistance
43       where financial need is a consideration for the award.

13
  1             (18) Plans, designs, drawings or specifications which are prepared by
  2       a person other than an employee of a public agency or records which are
  3       the property of a private person.
  4             (19) Well samples, logs or surveys which the state corporation com-
  5       mission requires to be filed by persons who have drilled or caused to be
  6       drilled, or are drilling or causing to be drilled, holes for the purpose of
  7       discovery or production of oil or gas, to the extent that disclosure is limited
  8       by rules and regulations of the state corporation commission.
  9             (20) Notes, preliminary drafts, research data in the process of anal-
10       ysis, unfunded grant proposals, memoranda, recommendations or other
11       records in which opinions are expressed or policies or actions are pro-
12       posed, except that. This exemption shall not apply when such records are
13       publicly cited or identified in an open meeting or in an agenda of an open
14       meeting.
15             (21) Records of a public agency having legislative powers, which re-
16       cords pertain to proposed legislation or amendments to proposed legis-
17       lation, except that. This exemption shall not apply when such records are:
18             (A) Publicly cited or identified in an open meeting or in an agenda
19       of an open meeting; or
20             (B) distributed to a majority of a quorum of any body which has au-
21       thority to take action or make recommendations to the public agency with
22       regard to the matters to which such records pertain.
23             (22) Records of a public agency having legislative powers, which re-
24       cords pertain to research prepared for one or more members of such
25       agency, except that. This exemption shall not apply when such records
26       are:
27             (A) Publicly cited or identified in an open meeting or in an agenda
28       of an open meeting; or
29             (B) distributed to a majority of a quorum of any body which has au-
30       thority to take action or make recommendations to the public agency with
31       regard to the matters to which such records pertain.
32             (23) Library patron and circulation records which pertain to identi-
33       fiable individuals.
34             (24) Records which are compiled for census or research purposes and
35       which pertain to identifiable individuals.
36             (25) Records which represent and constitute the work product of an
37       attorney.
38             (26) Records of a utility or other public service pertaining to individ-
39       ually identifiable residential customers of the utility or service, except
40       that. Information concerning billings for specific individual customers
41       named by the requester shall be subject to disclosure as provided by this
42       act.
43             (27) Specifications for competitive bidding, until the specifications

14
  1       are officially approved by the public agency.
  2             (28) Sealed bids and related documents, until a bid is accepted or all
  3       bids rejected.
  4             (29) Correctional records pertaining to an identifiable inmate or re-
  5       lease, except that:
  6             (A) The name; photograph and other identifying information; sen-
  7       tence data; parole eligibility date; custody or supervision level; disciplinary
  8       record; supervision violations; conditions of supervision, excluding
  9       requirements pertaining to mental health or substance abuse counseling;
10       location of facility where incarcerated or location of parole office main-
11       taining supervision and address of a releasee whose crime was committed
12       after the effective date of this act shall be subject to disclosure to any
13       person other than another inmate or releasee, except that. The disclosure
14       of the location of an inmate transferred to another state pursuant to the
15       interstate corrections compact shall be at the discretion of the secretary
16       of corrections;
17             (B) the ombudsman of corrections, the attorney general, law enforce-
18       ment agencies, counsel for the inmate to whom the record pertains and
19       any county or district attorney shall have access to correctional records to
20       the extent otherwise permitted by law;
21             (C) the information provided to the law enforcement agency pursu-
22       ant to the sex offender registration act, K.S.A. 22-4901, et seq., and
23       amendments thereto, shall be subject to disclosure to any person, except
24       that. The name, address, telephone number or any other information
25       which specifically and individually identifies the victim of any offender
26       required to register as provided by the Kansas offender registration act,
27       K.S.A. 22-4901 et seq. and amendments thereto, shall not be disclosed;
28       and
29             (D) records of the department of corrections regarding the financial
30       assets of an offender in the custody of the secretary of corrections shall
31       be subject to disclosure to the victim, or such victim's family, of the crime
32       for which the inmate is in custody as set forth in an order of restitution
33       by the sentencing court.
34             (30) Public records containing information of a personal nature
35       where the public disclosure thereof would constitute a clearly unwar-
36       ranted invasion of personal privacy.
37             (31) Public records pertaining to prospective location of a business
38       or industry where no previous public disclosure has been made of the
39       business' or industry's interest in locating in, relocating within or expand-
40       ing within the state. This exception shall not include those records per-
41       taining to application of agencies for permits or licenses necessary to do
42       business or to expand business operations within this state, except as
43       otherwise provided by law.

15
  1             (32) The bidder's list of contractors who have requested bid proposals
  2       for construction projects from any public agency, until a bid is accepted
  3       or all bids rejected.
  4             (33) (32) Engineering and architectural estimates made by or for any
  5       public agency relative to public improvements.
  6             (34) (33) Financial information submitted by contractors in qualifi-
  7       cation statements to any public agency.
  8             (35) (34) Records involved in the obtaining and processing of intel-
  9       lectual property rights that are expected to be, wholly or partially vested
10       in or owned by a state educational institution, as defined in K.S.A. 76-
11       711, and amendments thereto, or an assignee of the institution organized
12       and existing for the benefit of the institution.
13             (36) (35) Any report or record which is made pursuant to K.S.A. 65-
14       4922, 65-4923 or 65-4924, and amendments thereto, and which is privi-
15       leged pursuant to K.S.A. 65-4915 or 65-4925, and amendments thereto.
16             (37) (36) Information which would reveal the precise location of an
17       archeological site.
18             (38) (37) Any financial data or traffic information from a railroad com-
19       pany, to a public agency, concerning the sale, lease or rehabilitation of
20       the railroad's property in Kansas.
21             (39) (38) Risk-based capital reports, risk-based capital plans and cor-
22       rective orders including the working papers and the results of any analysis
23       filed with the commissioner of insurance in accordance with K.S.A. 1999
24       Supp. 40-2c20, and amendments thereto.
25             (40) (39) Memoranda and related materials required to be used to
26       support the annual actuarial opinions submitted pursuant to subsection
27       (b) of K.S.A. 40-409, and amendments thereto.
28             (41) (40) Disclosure reports filed with the commissioner of insurance
29       under subsection (a) of K.S.A. 1999 Supp. 40-2,156, and amendments
30       thereto.
31             (42) (41) All financial analysis ratios and examination synopses con-
32       cerning insurance companies that are submitted to the commissioner by
33       the national association of insurance commissioners' insurance regulatory
34       information system.
35             (43) (42) Any records the disclosure of which is restricted or prohib-
36       ited by a tribal-state gaming compact.
37             (44) (43) Market research, market plans, business plans and the terms
38       and conditions of managed care or other third party contracts, developed
39       or entered into by the university of Kansas medical center in the operation
40       and management of the university hospital which the chancellor of the
41       university of Kansas or the chancellor's designee determines would give
42       an unfair advantage to competitors of the university of Kansas medical
43       center.

16
  1             (b) Except to the extent disclosure is otherwise required by law or as
  2       appropriate during the course of an administrative proceeding or on ap-
  3       peal from agency action, a public agency or officer shall not disclose fi-
  4       nancial information of a taxpayer which may be required or requested by
  5       a county appraiser or the director of property valuation to assist in the
  6       determination of the value of the taxpayer's property for ad valorem tax-
  7       ation purposes; or any financial information of a personal nature required
  8       or requested by a public agency or officer, including a name, job descrip-
  9       tion or title revealing the salary or other compensation of officers, em-
10       ployees or applicants for employment with a firm, corporation or agency,
11       except a public agency. Nothing contained herein shall be construed to
12       prohibit the publication of statistics, so classified as to prevent identifi-
13       cation of particular reports or returns and the items thereof.
14             (c) As used in this section, the term ``cited or identified'' shall not
15       include a request to an employee of a public agency that a document be
16       prepared.
17             (d) If a public record contains material which is not subject to dis-
18       closure pursuant to this act, the public agency shall separate or delete
19       such material and make available to the requester that material in the
20       public record which is subject to disclosure pursuant to this act. If a public
21       record is not subject to disclosure because it pertains to an identifiable
22       individual, the public agency shall delete the identifying portions of the
23       record and make available to the requester any remaining portions which
24       are subject to disclosure pursuant to this act, unless the request is for a
25       record pertaining to a specific individual or to such a limited group of
26       individuals that the individuals' identities are reasonably ascertainable, the
27       public agency shall not be required to disclose those portions of the record
28       which pertain to such individual or individuals.
29             (e) The provisions of this section shall not be construed to exempt
30       from public disclosure statistical information not descriptive of any iden-
31       tifiable person.
32             (f) Notwithstanding the provisions of subsection (a), any public rec-
33       ord which has been in existence more than 70 years shall be open for
34       inspection by any person unless disclosure of the record is specifically
35       prohibited or restricted by federal law, state statute or rule of the Kansas
36       supreme court or by a policy adopted pursuant to K.S.A. 72-6214, and
37       amendments thereto.
38             New Sec.  12. (a) It is the intent of the legislature that exceptions to
39       disclosure under the open records act shall be created or maintained only
40       if:
41             (1) The public record is of a sensitive or personal nature concerning
42       individuals;
43             (2) the public record is necessary for the effective and efficient ad-

17
  1       ministration of a governmental program; or
  2             (3) the public record affects confidential information.
  3             The maintenance or creation of an exception to disclosure must be
  4       compelled as measured by these criteria. Further, the legislature finds
  5       that the public has a right to have access to public records unless the
  6       criteria in this section for restricting such access to a public record are
  7       met and the criteria are considered during legislative review in connection
  8       with the particular exception to disclosure to be significant enough to
  9       override the strong public policy of open government. To strengthen the
10       policy of open government, the legislature shall consider the criteria in
11       this section before enacting an exception to disclosure.
12             (b) All exceptions to disclosure in existence on July 1, 2000, shall
13       expire on July 1, 2005, and any new exception to disclosure or substantial
14       amendment of an existing exception shall expire on July 1 of the fifth year
15       after enactment of the new exception or substantial amendment, unless
16       the legislature acts to reenact the exception. A law that enacts a new
17       exception or substantially amends an existing exception shall state that
18       the exception expires at the end of five years and that the exception shall
19       be reviewed by the legislature before the scheduled date.
20             (c) For purposes of this section, an exception is substantially amended
21       if the amendment expands the scope of the exception to include more
22       records or information. An exception is not substantially amended if the
23       amendment narrows the scope of the exception.
24             (d) This section is not intended to repeal an exception that has been
25       amended following legislative review before the scheduled repeal of the
26       exception if the exception is not substantially amended as a result of the
27       review.
28             (e) In the year before the expiration of an exception, the revisor of
29       statutes shall certify to the president of the senate and the speaker of the
30       house of representatives, by June 1, the language and statutory citation
31       of each exception which will expire in the following year which meets the
32       criteria of an exception as defined in this section. Any exception that is
33       not identified and certified to the president of the senate and the speaker
34       of the house of representatives is not subject to legislative review and
35       shall not expire. If the revisor of statutes fails to certify an exception that
36       the revisor subsequently determines should have been certified, the re-
37       visor shall include the exception in the following year's certification after
38       that determination.
39             (f) ``Exception'' means any provision of law which creates an excep-
40       tion to disclosure or limits disclosure under the open records act pursuant
41       to K.S.A. 45-221, and amendments thereto, or pursuant to any other
42       provision of law.
43             (g) A provision of law which creates or amends an exception to dis-

18
  1       closure under the open records law shall not be subject to review and
  2       expiration under this act if such provision:
  3             (1) Is required by federal law;
  4             (2) applies solely to the legislature or to the state court system.
  5             (h)  (1) The legislature shall review the exception before its scheduled
  6       expiration and consider as part of the review process the following:
  7             (A) What specific records are affected by the exception;
  8             (B) whom does the exception uniquely affect, as opposed to the gen-
  9       eral public;
10             (C) what is the identifiable public purpose or goal of the exception;
11             (D) whether the information contained in the records may be ob-
12       tained readily by alternative means and how it may be obtained;
13             (2) An exception may be created or maintained only if it serves an
14       identifiable public purpose and may be no broader than is necessary to
15       meet the public purpose it serves. An identifiable public purpose is served
16       if the legislature finds that the purpose is sufficiently compelling to over-
17       ride the strong public policy of open government and cannot be accom-
18       plished without the exception and if the exception:
19             (A) Allows the effective and efficient administration of a govern-
20       mental program, which administration would be significantly impaired
21       without the exception;
22             (B) protects information of a sensitive personal nature concerning
23       individuals, the release of which information would be defamatory to such
24       individuals or cause unwarranted damage to the good name or reputation
25       of such individuals or would jeopardize the safety of such individuals.
26       Only information that would identify the individuals may be excepted
27       under this paragraph; or
28             (C) protects information of a confidential nature concerning entities,
29       including, but not limited to, a formula, pattern, device, combination of
30       devices, or compilation of information which is used to protect or further
31       a business advantage over those who do not know or use it, the disclosure
32       of which information would injure the affected entity in the marketplace.
33             (3) Records made before the date of the expiration of an exception
34       shall be subject to disclosure as otherwise provided by law. In deciding
35       whether the records shall be made public, the legislature shall consider
36       whether the damage or loss to persons or entities uniquely affected by
37       the exception of the type specified in paragraph (2)(B) or (2)(C) of this
38       subsection (h) would occur if the records were made public.
39             Sec.  13. K.S.A. 45-222 is hereby amended to read as follows: 45-222.
40       (a) Any person, the [The] attorney general or a county or district attorney
41       may bring an action to enforce the provisions of this act pursuant to this
42       section or may file a complaint pursuant to section 2, and amendments
43       thereto, with the public information officer. The district court of any

19
  1       county in which public records are located shall have jurisdiction to en-
  2       force the purposes of this act with respect to such records, by injunction,
  3       mandamus or other appropriate order, in an action brought by any person,
  4       the attorney general or a county or district attorney.
  5             (b) In any action hereunder, the court shall determine the matter de
  6       novo. The court on its own motion, or on motion of either party, may
  7       view the records in controversy in camera before reaching a decision.
  8             (c) In any action hereunder, the court may award attorney fees to the
  9       plaintiff if the court finds that the agency's denial of access to the public
10       record was not in good faith and without a reasonable basis in fact or law.
11       If the plaintiff prevails in any such action, the court shall [may] award
12       attorney fees when an opinion has been issued by the public information
13       officer and the public agency fails to comply with the opinion. The award
14       shall be assessed against the public agency that the court determines to
15       be responsible for the violation.
16             (d) In any action hereunder in which the defendant is the prevailing
17       party, the court may award to the defendant attorney fees if the court
18       finds that the plaintiff maintained the action not in good faith and [friv-
19       olously, in bad faith or] without a reasonable basis in fact or law.
20             (e) Except as otherwise provided by law, proceedings arising under
21       this section shall be assigned for hearing and trial at the earliest practi-
22       cable date.
23        [(f) Any person may file a complaint pursuant to section 1, and
24       amendments thereto, with the public information officer. Any pro-
25       ceedings on such complaint shall be conducted in accordance with
26       section 1, and amendments thereto.]
27             Sec.  14. K.S.A. 45-223 is hereby amended to read as follows: 45-223.
28       (a) Except as provided by subsection (b) [of this section or subsection
29       (c) of section 12], no public agency nor any officer or employee of a
30       public agency shall be liable for damages or other penalty resulting from
31       the failure to provide access to a public record in violation of this act.
32             (b) A civil penalty not to exceed $500 may be imposed against a public
33       agency if the custodian of such agency fails to disclose or orders the cus-
34       todian not to disclose a record not exempt from disclosure. All moneys
35       received pursuant to this section shall be remitted to the state treasurer.
36       The state treasurer shall deposit such moneys in the state treasury as
37       provided in section 5, and amendments thereto.
38             New Sec.  15. All records relating to the use of public moneys re-
39       ceived by any private entity or organization shall be subject to disclosure
40       to the same extent such records would be subject to disclosure if such
41       entity or organization was a public agency.
42        [New Sec.  15. (a) The attorney general and any county or dis-
43       trict attorney may investigate alleged violations of the open re-

20
  1       cords act.
  2             [(b) In investigating alleged violations of the open records act,
  3       the attorney general or county or district attorney may:
  4             [(1) Subpoena witnesses, evidence, documents or other
  5       material;
  6             [(2) take testimony under oath;
  7             [(3) examine or cause to be examined any documentary mate-
  8       rial of whatever nature relevant to such alleged violations;
  9             [(4) require attendance during such examination of documen-
10       tary material and take testimony under oath or acknowledgment
11       in respect of any such documentary material; and
12             [(5) serve interrogatories.
13        [New Sec.  16. (a) Any records described in subsection (b) of a
14       private organization or entity shall not be subject to the provisions
15       of the open records act.
16             [(b) The provisions of subsection (a) shall apply to the
17       following:
18             [(1) Balance sheets;
19             [(2) statements of financial position;
20             [(3) income statements;
21             [(4) statements of profit and loss;
22             [(5) cash flow statements;
23             [(6) statements of change in financial position;
24             [(7) statements of change in retained earnings; or
25             [(8) federal or state income tax returns.
26        [New Sec.  17. (a) The attorney general and any county or dis-
27       trict attorney may investigate alleged violations of the open re-
28       cords act.
29             [(b) In investigating alleged violations of the open records act,
30       the attorney general or county or district attorney may:
31             [(1) Subpoena witnesses, evidence, documents or other
32       material;
33             [(2) take testimony under oath;
34             [(3) examine or cause to be examined any documentary mate-
35       rial of whatever nature relevant to such alleged violations;
36             [(4) require attendance during such examination of documen-
37       tary material and take testimony under oath or acknowledgment
38       in respect of any such documentary material; and
39             [(5) serve interrogatories.
40        [New Sec.  18. If there is an alleged violation of the open re-
41       cords act by the attorney general or if the attorney general fails to
42       disclose a public record which is not exempt from disclosure under
43       the open records act or any other provision of law, the secretary

21
  1       of state shall have the same powers, duties and functions of a
  2       county or district attorney to investigate an alleged violation of the
  3       open records act by the attorney general and to file an action to
  4       compel the attorney general to disclose any public record not dis-
  5       closed in violation of such act and to otherwise enforce such act
  6       against the attorney general.]
  7             Sec.  16. [19.] K.S.A. 1999 Supp. 75-4317 is hereby amended to read
  8       as follows: 75-4317. (a) K.S.A. 75-4317 through 75-4320a [and section
  9       21 and section 22], and amendments thereto, shall be known and may
10       be cited as the open meetings act.
11             (b) In recognition of the fact that a representative government is de-
12       pendent upon an informed electorate and that access to the process of
13       government is an important part of having an informed electorate, it is
14       declared to be the policy of this state that meetings for the conduct of
15       governmental affairs and the transaction of governmental business be
16       open to the public.
17             (b) (c) It is declared hereby to be against the public policy of this
18       state for any such meeting to be adjourned to another time or place, or
19       other action taken in order [with the intent] to subvert the policy of
20       open public meetings as pronounced in subsection (a) giving providing
21       public access to the process of government. This act shall be construed
22       liberally to protect and encourage the public's right of access to the process
23       of government through open public meetings.
24             (c) K.S.A. 75-4317 through 75-4320a shall be known and may be cited
25       as the open meetings act.
26             Sec.  17. [20.] K.S.A. 75-4317a is hereby amended to read as follows:
27       75-4317a. (a) As used in this act, ``meeting'':
28             (a) ``Meeting'' means any gathering, assembly, telephone call or any
29       other means of interactive communication by a majority of a quorum of
30       the membership of a body or agency subject to this act for the purpose
31       of discussing the business or affairs of the body or agency.
32             (b) ``Public information officer'' means the public access officer ap-
33       pointed pursuant to section 1, and amendments thereto.
34             Sec.  18. [21.] K.S.A. 75-4318 is hereby amended to read as follows:
35       75-4318. (a) Except as otherwise provided by state or federal law or by
36       rules of the house or senate, and except with respect to any impeachment
37       inquiry or other impeachment matter referred to any committee of the
38       house of representatives prior to the report of such committee to the full
39       house of representatives, all meetings for the conduct of the affairs of,
40       and the transaction of business by, all legislative and administrative bodies
41       and agencies of the state and political and taxing subdivisions thereof,
42       including boards, commissions, authorities, councils, committees, sub-
43       committees and other subordinate groups thereof, receiving or expending

22
  1       and supported in whole or in part by public funds shall be open to the
  2       public and no binding action by such bodies shall be by secret ballot, but
  3       any administrative body that is authorized by law to exercise quasi-judicial
  4       functions shall not be required to have open meetings when such body
  5       is deliberating matters relating to a decision involving such quasi-judicial
  6       functions.
  7             (b) Notice of the date, time and place of any regular or special meet-
  8       ing of a public body designated hereinabove shall be furnished to any
  9       person requesting such notice, except that:
10             (1) If notice is requested by petition, the petition shall designate one
11       person to receive notice on behalf of all persons named in the petition,
12       and notice to such person shall constitute notice to all persons named in
13       the petition;
14             (2) if notice is furnished to an executive officer of an employees' or-
15       ganization or trade association, such notice shall be deemed to have been
16       furnished to the entire membership of such organization or association;
17       and
18             (3) the public body may require that a request to receive notice must
19       be submitted again to the body prior to the commencement of any sub-
20       sequent fiscal year of the body during which the person wishes to continue
21       receiving notice, but, prior to discontinuing notice to any person, the
22       public body must notify the person that notice will be discontinued unless
23       the person resubmits a request to receive notice.
24             (c) It shall be the duty of the presiding officer or other person calling
25       the meeting, if the meeting is not called by the presiding officer, to furnish
26       the notice required by subsection (b).
27             (d) Prior to any meeting hereinabove mentioned, any agenda relating
28       to the business to be transacted at such meeting shall be made available
29       to any person requesting said agenda.
30             (e) The use of cameras, photographic lights and recording devices
31       shall not be prohibited at any meeting mentioned by subsection (a), but
32       such use shall be subject to reasonable rules designed to insure the or-
33       derly conduct of the proceedings at such meeting.
34             (f) Any body or agency subject to the provisions of the open meetings
35       act shall display [at the regular meeting site or location] a sign a
36       conspicuous place at the principal office of the body or agency a
37       notice] that contains basic information about the rights of the public, the
38       responsibilities of such body or agency and the procedures for requesting
39       notice of public meetings under the open meetings act. Such sign shall
40       conform to the requirements prescribed by the public information officer.
41             Sec.  19. [22.] K.S.A. 1999 Supp. 75-4319 is hereby amended to read
42       as follows: 75-4319. (a) Upon formal motion made, seconded and carried,
43       all bodies and agencies subject to the open meetings act may recess, but

23
  1       not adjourn, open meetings for closed or executive meetings. Any motion
  2       to recess for a closed or executive meeting shall include a statement of
  3       (1) the justification for closing the meeting, (2) the subjects to be dis-
  4       cussed during the closed or executive meeting and (3) the time and place
  5       at which the open meeting shall resume. Such motion, including the re-
  6       quired statement, shall be recorded in the minutes of the meeting and
  7       shall be maintained as a part of the permanent records of the body or
  8       agency. Discussion during the closed or executive meeting shall be limited
  9       to those subjects stated in the motion.
10             (b) No subjects shall be discussed at any closed or executive meeting,
11       except the following:
12             (1) Personnel matters of Hiring, termination of employment and em-
13       ployee disciplinary matters of individual[Personnel matter] nonelected
14       personnel;
15        [(1) The following matters relating to individual nonelected
16       personnel: Hiring, termination of employment and other forms of
17       discipline, performance evaluations and complaints and griev-
18       ances against such personnel;]
19             (2) consultation with an attorney for the body or agency which would
20       be deemed privileged in the attorney-client relationship;
21             (3) matters relating to employer-employee negotiations whether or
22       not in consultation with the representative or representatives of the body
23       or agency[. This subsection shall not apply to discussions concerning
24       the election of a public agency to be subject to the provisions of
25       K.S.A. 75-4321 et seq., and amendments thereto];
26             (4) confidential data relating to financial affairs or trade secrets of
27       corporations, partnerships, trusts, and individual proprietorships;
28             (5) matters relating to actions adversely or favorably affecting a per-
29       son as a student, patient or resident of a public institution, except that
30       any such person shall have the right to a public hearing if requested by
31       the person;
32             (6) preliminary discussions relating to the acquisition of real property;
33             (7) matters permitted to be discussed in a closed or executive meeting
34       pursuant to K.S.A. 74-8804, and amendments thereto;
35             (8) matters permitted to be discussed in a closed or executive meeting
36       pursuant to subsection (e) of K.S.A. 38-1507 and amendments thereto or
37       subsection (f) of K.S.A. 38-1508, and amendments thereto;
38             (9) matters permitted to be discussed in a closed or executive meeting
39       pursuant to subsection (j) of K.S.A. 22a-243, and amendments thereto;
40             (10) matters permitted to be discussed in a closed or executive meet-
41       ing pursuant to subsection (e) of K.S.A. 44-596, and amendments thereto;
42             (11) matters permitted to be discussed in a closed or executive meet-
43       ing pursuant to subsection (g) of K.S.A. 1999 Supp. 39-7,119, and amend-

24
  1       ments thereto;
  2             (12) matters required to be discussed in a closed or executive meeting
  3       pursuant to a tribal-state gaming compact; and
  4             (13) matters relating to the security of a public body or agency, public
  5       building or facility or the information system of a public body or agency,
  6       if the discussion of such matters at an open meeting would jeopardize
  7       the security of such public body, agency, building, facility or information
  8       system.
  9             (c) No binding action shall be taken during closed or executive re-
10       cesses, and such recesses shall not be used as a subterfuge to defeat the
11       purposes of this act.
12             (d) Closed [Except to the extent that the attorney client or at-
13       torney work product privilege applies, closed] or executive meetings
14       shall be taped or otherwise recorded. [The taping or recording of a
15       closed or executive session shall not constitute a waiver of the at-
16       torney-client privilege if the matter is discussed in closed or ex-
17       ecutive meeting pursuant to paragraph (2) of subsection (b).] Ex-
18       cept as provided by K.S.A. 75-4320a or section 2, and amendments
19       thereto, such tape or recording shall not be subject to disclosure or dis-
20       covery in a civil or criminal action. Any tape or recording of a closed or
21       executive meeting shall be kept for at least six months following the date
22       of such meeting. Such tape or recording shall not be erased, edited or
23       destroyed if a complaint has been filed alleging a violation of the open
24       meetings act [or] until time for filing a complaint and any hearing thereon
25       or appeal thereof has expired. [No closed or executive meeting shall
26       be taped or otherwise recorded.]
27             Sec.  20. [23.] K.S.A. 75-4320 is hereby amended to read as follows:
28       75-4320. (a) Any member of a body or agency subject to this act who
29       knowingly violates any of the provisions of this act or who intentionally
30       fails to furnish information as required by subsection (b) of K.S.A. 75-
31       4318, and amendments thereto, shall be liable for the payment of a civil
32       penalty in an action brought by the attorney general or county or district
33       attorney, in a sum set by the court of not to exceed five hundred dollars
34       ($500) $500 for each violation. In addition, any binding action which is
35       taken at a meeting not in substantial compliance with the provisions of
36       this act shall be voidable in any action brought by the attorney general or
37       county or district attorney in the district court of the county in which the
38       meeting was held within ten (10) 10 days of the meeting, and the court
39       shall have jurisdiction to issue injunctions or writs of mandamus to en-
40       force the provisions of this act.
41             (b) Civil penalties sued for and recovered hereunder by the attorney
42       general or the public information officer shall be paid into the state gen-
43       eral fund remitted to the state treasurer. The state treasurer shall deposit

25
  1       such moneys in the state treasury as provided in section 5, and amend-
  2       ments thereto. Civil penalties sued for and recovered hereunder by a
  3       county or district attorney shall be paid into the general fund of the county
  4       where the proceedings were instigated.
  5             Sec.  21. [24.] K.S.A. 75-4320a is hereby amended to read as follows:
  6       75-4320a. (a) Any person, the [The] attorney general or a county or dis-
  7       trict attorney may bring an action to enforce the provisions of this act
  8       pursuant to this section or may file a complaint pursuant to section 2, and
  9       amendments thereto, with the public information officer. The district
10       court of any county in which a meeting is held shall have jurisdiction to
11       enforce the purposes of K.S.A. 75-4318 and 75-4319, and amendments
12       thereto, with respect to such meeting, by injunction, mandamus or other
13       appropriate order, on application of any person.
14             (b) In any action hereunder, the burden of proof shall be on the
15       public body or agency to sustain its action.
16             (c) In any action hereunder for violations of K.S.A. 75-4319, and
17       amendments thereto, the court on its own motion, or on the motion of the
18       person seeking enforcement of the provisions of K.S.A. 75-4319, and
19       amendments thereto, may review, in camera, the tape or recording of the
20       closed or executive meeting which is the subject of such action. After such
21       review, if the court finds that a violation has occurred, that portion of
22       such tape or recording of the closed or executive session which should
23       have been open shall be open for public inspection.
24             (c) (d) [(c)] In any action hereunder, the court may award court costs
25       to the person seeking to enforce the provisions of K.S.A. 75-4318 or 75-
26       4319, and amendments thereto, if the court finds that the provisions of
27       those statutes were violated. The award If the person seeking to enforce
28       the provisions of K.S.A. 75-4318 or 75-4319, and amendments thereto,
29       prevails, the court shall [may] award attorney fees when an [advisory]
30       opinion has been issued by the public information officer and the public
31       body or agency fails to comply with the opinion. Such awards shall be
32       assessed against the public agency or body responsible for the violation.
33             (d) (e) [(d)] In any action hereunder in which the defendant is the
34       prevailing party, the court may award to the defendant court costs if the
35       court finds that the plaintiff maintained the action frivolously, not in good
36       [bad] faith or without a reasonable basis in fact or law.
37             (e) (f) [(e)] Except as otherwise provided by law, proceedings arising
38       under this section shall take precedence over all other cases and shall be
39       assigned for hearing and trial at the earliest practicable date.
40             (f) As used in this section, ``meeting'' has the meaning provided by
41       K.S.A. 75-4317a and amendments thereto.
42             (g) [(f)] Any body or agency which conducts a meeting in compliance
43       with an [advisory] opinion issued by the public information officer shall

26
  1       not be liable for the payment of a fine, penalty or other fee in any hearing
  2       before a court or in any subsequent appeal from such hearing.
  3        [(g) Any person may file a complaint pursuant to section 1, and
  4       amendments thereto, with the public information officer. Any pro-
  5       ceedings on such complaint shall be conducted in accordance with
  6       section 1, and amendments thereto.
  7             [(h) For the purposes of this section, the term public infor-
  8       mation officer means the public access officer appointed pursuant
  9       to section 1, and amendments thereto.
10        [New Sec.  25. (a) The attorney general and any county or dis-
11       trict attorney may investigate alleged violations of the open meet-
12       ings act.
13             [(b) In investigating alleged violations of the open meetings
14       act, the attorney general or county or district attorney may:
15             [(1) Subpoena witnesses, evidence, documents or other
16       material;
17             [(2) take testimony under oath;
18             [(3) examine or cause to be examined any documentary mate-
19       rial of whatever nature relevant to such alleged violations;
20             [(4) require attendance during such examination of documen-
21       tary material and take testimony under oath or acknowledgment
22       in respect of any such documentary material; and
23             [(5) serve interrogatories.
24        [New Sec.  26. (a) The attorney general and any county or dis-
25       trict attorney may investigate alleged violations of the open re-
26       cords act.
27             [(b) In investigating alleged violations of the open records act,
28       the attorney general or county or district attorney may:
29             [(1) Subpoena witnesses, evidence, documents or other
30       material;
31             [(2) take testimony under oath;
32             [(3) examine or cause to be examined any documentary mate-
33       rial of whatever nature relevant to such alleged violations;
34             [(4) require attendance during such examination of documen-
35       tary material and take testimony under oath or acknowledgment
36       in respect of any such documentary material; and
37             [(5) serve interrogatories.]
38        Sec.  22. [27.] K.S.A. 45-215, 45-218, 45-220, 45-222, 45-223, 75-
39       4317a, 75-4318, 75-4320 and 75-4320a and K.S.A. 1999 Supp. 45-217,
40       45-219, 45-221, 75-4317 and 75-4319 are hereby repealed.
41        Sec.  23. [28.] This act shall take effect and be in force from and after
42       its publication in the statute book.