Session of 2000
SENATE BILL No. 468
By Senators Hensley, Barone, Biggs, Downey, Feleciano,
Gilstrap,
Gooch, Goodwin, Jones, Lee, Petty, Steineger and
Stephens
1-24
10 AN ACT
concerning open records; access to such records; establishing
11 a freedom of
information officer and providing for the powers and
12 duties thereof;
amending K.S.A. 45-222 and 45-223 and K.S.A. 1999
13 Supp. 45-219 and
repealing the existing sections.
14
15 Be it enacted by the Legislature of the
State of Kansas:
16 Section
1. K.S.A. 1999 Supp. 45-219 is hereby amended to read as
17 follows: 45-219. (a) Any person may make
abstracts or obtain copies of
18 any public record to which such person has
access under this act. If copies
19 are requested, the public agency may
require a written request and ad-
20 vance payment of the prescribed fee. A
public agency shall not be re-
21 quired to provide copies of radio or
recording tapes or discs, video tapes
22 or films, pictures, slides, graphics,
illustrations or similar audio or visual
23 items or devices, unless such items or
devices were shown or played to a
24 public meeting of the governing body
thereof, but the public agency shall
25 not be required to provide such items or
devices which are copyrighted
26 by a person other than the public
agency.
27 (b) Copies of
public records shall be made while the records are in
28 the possession, custody and control of the
custodian or a person desig-
29 nated by the custodian and shall be made
under the supervision of such
30 custodian or person. When practical, copies
shall be made in the place
31 where the records are kept. If it is
impractical to do so, the custodian
32 shall allow arrangements to be made for use
of other facilities. If it is
33 necessary to use other facilities for
copying, the cost thereof shall be paid
34 by the person desiring a copy of the
records. In addition, the public
35 agency may charge the same fee for the
services rendered in supervising
36 the copying as for furnishing copies under
subsection (c) and may estab-
37 lish a reasonable schedule of times for
making copies at other facilities.
38 (c) Except as
provided by subsection (f) or where fees for inspection
39 or for copies of a public record are
prescribed by statute, each public
40 agency may prescribe reasonable fees for
providing access to or furnishing
41 copies of public records, subject to the
following:
42 (1) In the case
of fees for copies of records, the fees shall not exceed
2
1 the actual cost of furnishing copies,
including the cost of staff time re-
2 quired to make the information
available.
3 (2) In the
case of fees for providing access to records maintained on
4 computer facilities, the fees shall
include only the cost of any computer
5 services, including staff time
required.
6 (3) Fees
for access to or copies of public records of public agencies
7 within the legislative branch of the
state government shall be established
8 in accordance with K.S.A. 46-1207a
and amendments thereto.
9 (4) Fees
for access to or copies of public records of public agencies
10 within the judicial branch of the state
government shall be established in
11 accordance with rules of the supreme
court.
12 (5) Fees for
access to or copies of public records of a public agency
13 within the executive branch of the state
government shall be established
14 by the agency head.
15 (6) Any
person requesting public records may appeal the
reasonable-
16 ness of the fees charged for providing
access to or furnishing copies of
17 such records to the secretary of
administration freedom of information
18 officer established under section 3 and
amendments thereto whose deci-
19 sion shall be final. A fee for copies of
public records which is equal to or
20 less than $.25 per page shall be deemed a
reasonable fee.
21 (d) Except as
otherwise authorized pursuant to K.S.A. 75-4215 and
22 amendments thereto, each public agency
within the executive branch of
23 the state government shall remit all moneys
received by or for it from
24 fees charged pursuant to this section to
the state treasurer in accordance
25 with K.S.A. 75-4215 and amendments thereto.
Unless otherwise specifi-
26 cally provided by law, the state treasurer
shall deposit the entire amount
27 thereof in the state treasury and credit
the same to the state general fund
28 or an appropriate fee fund as determined by
the agency head.
29 (e) Each public
agency of a political or taxing subdivision shall remit
30 all moneys received by or for it from fees
charged pursuant to this act to
31 the treasurer of such political or taxing
subdivision at least monthly. Upon
32 receipt of any such moneys, such treasurer
shall deposit the entire amount
33 thereof in the treasury of the political or
taxing subdivision and credit the
34 same to the general fund thereof, unless
otherwise specifically provided
35 by law.
36 (f) Any person
who is a certified shorthand reporter may charge fees
37 for transcripts of such person's notes of
judicial or administrative pro-
38 ceedings in accordance with rates
established pursuant to rules of the
39 Kansas supreme court.
40 Sec.
2. K.S.A. 45-222 is hereby amended to read as follows:
45-222.
41 (a) The district court of any county in
which public records are located
42 shall have jurisdiction to enforce the
purposes of this act with respect to
43 such records, by injunction, mandamus or
other appropriate order, in an
3
1 action brought by any person, the
attorney general or a county or district
2 attorney.
3 (b) In any
action hereunder, the court shall determine the matter
de
4 novo. The court on its own
motion, or on motion of either party, may
5 view the records in controversy in
camera before reaching a decision.
6 (c) In any
action hereunder, the court may shall award
attorney fees
7 to the plaintiff if the court finds
that the agency's denial of access to the
8 public record was not in good faith
and without a reasonable basis in fact
9 or law. The award shall be assessed
against the public agency that the
10 court determines to be responsible for the
violation.
11 (d) In any action
hereunder in which the defendant is the prevailing
12 party, the court may award to the defendant
attorney fees if the court
13 finds that the plaintiff maintained the
action not in good faith and without
14 a reasonable basis in fact or law.
15 (e) Except as
otherwise provided by law, proceedings arising under
16 this section shall be assigned for hearing
and trial at the earliest practi-
17 cable date.
18 Sec.
3. K.S.A. 45-223 is hereby amended to read as follows:
45-223.
19 No public agency nor any officer or
employee of a public agency shall be
20 liable for damages resulting from
the failure to provide access to a public
21 record in violation of this
act. (a) An individual who denies access to a
22 public record under the open records act
without a reasonable basis in
23 fact or law to make such denial shall be
liable for the payment of a civil
24 penalty in an action brought by the
attorney general or county or district
25 attorney, in a sum set by the court of
not to exceed $500 for each violation.
26 (b) Civil
penalties sued for and recovered hereunder shall be paid
27 into the state general fund and shall be
made available to the freedom of
28 information officer to assist in
financing expenditures to provide educa-
29 tional information to public agencies
and to the public concerning the
30 provisions of the open records
act.
31 New Sec.
4. (a) There is hereby established within the office of
the
32 secretary of state a freedom of information
officer. The freedom of in-
33 formation officer shall be appointed by the
secretary of state within the
34 current unclassified positions authorized
for the office of secretary of
35 state, shall be in the unclassified service
under the Kansas civil service
36 act and shall serve at the pleasure of the
secretary of state. The freedom
37 of information officer shall assist public
agencies with the administration
38 of the open records act and shall assist
persons requesting public records
39 to obtain access to such records, shall
provide educational information to
40 public agencies and to the public at large
concerning the provisions of
41 the open records act, shall be available to
assist public agencies and per-
42 sons requesting public records to resolve
disputes relating to such public
43 records requests, shall develop guidelines
for state agencies and local
4
1 units of government covering access
to public records, shall investigate
2 citizens' complaints against public
agencies concerning public records,
3 shall report on or before January 8,
2001, to the legislature and the gov-
4 ernor recommendations for enhancing
enforcement of the open records
5 act and shall report annually
thereafter, on or before the first day of each
6 legislative session, to the
legislature and to the governor any recommen-
7 dation relating to the enforcement
and administration of the open records
8 act which the freedom of information
officer deems appropriate and shall
9 perform such other duties as may be
specified by law. Any decision of
10 the freedom of information officer
concerning access to a public record
11 shall be final and binding on the official
custodian of the record.
12 (b) This section
shall be part of and supplemental to the open records
13 act.
14 Sec. 5. K.S.A. 45-222 and 45-223
and K.S.A. 1999 Supp. 45-219 are
15 hereby repealed.
16 Sec. 6. This act shall
take effect and be in force from and after its
17 publication in the Kansas register.