CHAPTER 156 SENATE Substitute for Substitute for HOUSE BILL No. 2864 An  Act concerning public agencies; relating to the state of Kansas and local units of gov-
ernment; providing for local freedom of information officers; providing penalties for
violations of the open records act; providing certain powers to specified public officials
for investigation of violations of the Kansas open records act and the Kansas open meet-
ings act; relating to the changes in the classification of certain cities; relating to employees
of certain cities and counties; amending K.S.A. 14-101, 45-222 and 45-223 and K.S.A.
1999 Supp. 45-221 and repealing the existing sections.
Be it enacted by the Legislature of the State of Kansas:

      New Section  1. (a) The governing body of every public agency in
Kansas which maintains public records shall designate a local freedom of
information officer.

      (b) The local freedom of information officer or the local freedom of
information officer's designee shall:

      (1) Prepare and provide educational materials and information con-
cerning the open records act;

      (2) be available to assist the public agency and members of the gen-
eral public to resolve disputes relating to the open records act;

      (3) respond to inquiries relating to the open records act;

      (4) establish the requirements for the content, size, shape and other
physical characteristics of a brochure required to be displayed or distrib-
uted or otherwise make available to the public under the open records
act. In establishing such requirements for the content of the brochure,
the local freedom of information officer shall include plainly written basic
information about the rights of a requestor, the responsibilities of a public
agency, and the procedures for inspecting and obtaining a copy of public
records under the open records act.

      (c) This section shall be a part of and supplemental to the Kansas
open records act.

      New Sec.  2. (a) An official custodian shall prominently display or
distribute or otherwise make available to the public a brochure in the
form prescribed by the local freedom of information officer that contains
basic information about the rights of a requestor, the responsibilities of
a public agency, and the procedures for inspecting or obtaining a copy of
public records under the open records act. The official custodian shall
display or distribute or otherwise make available to the public the bro-
chure at one or more places in the administrative offices of the govern-
mental body where it is available to members of the public who request
public information in person under this act.

      (b) This section shall be a part of and supplemental to the Kansas
open records act.

      Sec.  3. K.S.A. 1999 Supp. 45-221 is hereby amended to read as fol-
lows: 45-221. (a) Except to the extent disclosure is otherwise required by
law, a public agency shall not be required to disclose:

      (1) Records the disclosure of which is specifically prohibited or re-
stricted by federal law, state statute or rule of the Kansas supreme court
or the disclosure of which is prohibited or restricted pursuant to specific
authorization of federal law, state statute or rule of the Kansas supreme
court to restrict or prohibit disclosure.

      (2) Records which are privileged under the rules of evidence, unless
the holder of the privilege consents to the disclosure.

      (3) Medical, psychiatric, psychological or alcoholism or drug depend-
ency treatment records which pertain to identifiable patients.

      (4) Personnel records, performance ratings or individually identifia-
ble records pertaining to employees or applicants for employment, except
that this exemption shall not apply to the names, positions, salaries and
lengths of service of officers and employees of public agencies once they
are employed as such.

      (5) Information which would reveal the identity of any undercover
agent or any informant reporting a specific violation of law.

      (6) Letters of reference or recommendation pertaining to the char-
acter or qualifications of an identifiable individual.

      (7) Library, archive and museum materials contributed by private
persons, to the extent of any limitations imposed as conditions of the
contribution.

      (8) Information which would reveal the identity of an individual who
lawfully makes a donation to a public agency, if anonymity of the donor
is a condition of the donation.

      (9) Testing and examination materials, before the test or examination
is given or if it is to be given again, or records of individual test or ex-
amination scores, other than records which show only passage or failure
and not specific scores.

      (10) Criminal investigation records, except that the district court, in
an action brought pursuant to K.S.A. 45-222, and amendments thereto,
may order disclosure of such records, subject to such conditions as the
court may impose, if the court finds that disclosure:

      (A) Is in the public interest;

      (B) would not interfere with any prospective law enforcement action;

      (C) would not reveal the identity of any confidential source or un-
dercover agent;

      (D) would not reveal confidential investigative techniques or proce-
dures not known to the general public;

      (E) would not endanger the life or physical safety of any person; and

      (F) would not reveal the name, address, phone number or any other
information which specifically and individually identifies the victim of any
sexual offense in article 35 of chapter 21 of the Kansas Statutes Anno-
tated, and amendments thereto.

      (11) Records of agencies involved in administrative adjudication or
civil litigation, compiled in the process of detecting or investigating vio-
lations of civil law or administrative rules and regulations, if disclosure
would interfere with a prospective administrative adjudication or civil
litigation or reveal the identity of a confidential source or undercover
agent.

      (12) Records of emergency or security information or procedures of
a public agency, or plans, drawings, specifications or related information
for any building or facility which is used for purposes requiring security
measures in or around the building or facility or which is used for the
generation or transmission of power, water, fuels or communications, if
disclosure would jeopardize security of the public agency, building or
facility.

      (13) The contents of appraisals or engineering or feasibility estimates
or evaluations made by or for a public agency relative to the acquisition
of property, prior to the award of formal contracts therefor.

      (14) Correspondence between a public agency and a private individ-
ual, other than correspondence which is intended to give notice of an
action, policy or determination relating to any regulatory, supervisory or
enforcement responsibility of the public agency or which is widely dis-
tributed to the public by a public agency and is not specifically in response
to communications from such a private individual.

      (15) Records pertaining to employer-employee negotiations, if dis-
closure would reveal information discussed in a lawful executive session
under K.S.A. 75-4319, and amendments thereto.

      (16) Software programs for electronic data processing and documen-
tation thereof, but each public agency shall maintain a register, open to
the public, that describes:

      (A) The information which the agency maintains on computer facil-
ities; and

      (B) the form in which the information can be made available using
existing computer programs.

      (17) Applications, financial statements and other information sub-
mitted in connection with applications for student financial assistance
where financial need is a consideration for the award.

      (18) Plans, designs, drawings or specifications which are prepared by
a person other than an employee of a public agency or records which are
the property of a private person.

      (19) Well samples, logs or surveys which the state corporation com-
mission requires to be filed by persons who have drilled or caused to be
drilled, or are drilling or causing to be drilled, holes for the purpose of
discovery or production of oil or gas, to the extent that disclosure is limited
by rules and regulations of the state corporation commission.

      (20) Notes, preliminary drafts, research data in the process of anal-
ysis, unfunded grant proposals, memoranda, recommendations or other
records in which opinions are expressed or policies or actions are pro-
posed, except that this exemption shall not apply when such records are
publicly cited or identified in an open meeting or in an agenda of an open
meeting.

      (21) Records of a public agency having legislative powers, which re-
cords pertain to proposed legislation or amendments to proposed legis-
lation, except that this exemption shall not apply when such records are:

      (A) Publicly cited or identified in an open meeting or in an agenda
of an open meeting; or

      (B) distributed to a majority of a quorum of any body which has au-
thority to take action or make recommendations to the public agency with
regard to the matters to which such records pertain.

      (22) Records of a public agency having legislative powers, which re-
cords pertain to research prepared for one or more members of such
agency, except that this exemption shall not apply when such records are:

      (A) Publicly cited or identified in an open meeting or in an agenda
of an open meeting; or

      (B) distributed to a majority of a quorum of any body which has au-
thority to take action or make recommendations to the public agency with
regard to the matters to which such records pertain.

      (23) Library patron and circulation records which pertain to identi-
fiable individuals.

      (24) Records which are compiled for census or research purposes and
which pertain to identifiable individuals.

      (25) Records which represent and constitute the work product of an
attorney.

      (26) Records of a utility or other public service pertaining to individ-
ually identifiable residential customers of the utility or service, except that
information concerning billings for specific individual customers named
by the requester shall be subject to disclosure as provided by this act.

      (27) Specifications for competitive bidding, until the specifications
are officially approved by the public agency.

      (28) Sealed bids and related documents, until a bid is accepted or all
bids rejected.

      (29) Correctional records pertaining to an identifiable inmate or re-
lease, except that:

      (A) The name; photograph and other identifying information; sen-
tence data; parole eligibility date; custody or supervision level; disciplinary
record; supervision violations; conditions of supervision, excluding
requirements pertaining to mental health or substance abuse counseling;
location of facility where incarcerated or location of parole office main-
taining supervision and address of a releasee whose crime was committed
after the effective date of this act shall be subject to disclosure to any
person other than another inmate or releasee, except that the disclosure
of the location of an inmate transferred to another state pursuant to the
interstate corrections compact shall be at the discretion of the secretary
of corrections;

      (B) the ombudsman of corrections, the attorney general, law enforce-
ment agencies, counsel for the inmate to whom the record pertains and
any county or district attorney shall have access to correctional records to
the extent otherwise permitted by law;

      (C) the information provided to the law enforcement agency pursu-
ant to the sex offender registration act, K.S.A. 22-4901, et seq., and
amendments thereto, shall be subject to disclosure to any person, except
that the name, address, telephone number or any other information which
specifically and individually identifies the victim of any offender required
to register as provided by the Kansas offender registration act, K.S.A. 22-
4901 et seq. and amendments thereto, shall not be disclosed; and

      (D) records of the department of corrections regarding the financial
assets of an offender in the custody of the secretary of corrections shall
be subject to disclosure to the victim, or such victim's family, of the crime
for which the inmate is in custody as set forth in an order of restitution
by the sentencing court.

      (30) Public records containing information of a personal nature
where the public disclosure thereof would constitute a clearly unwar-
ranted invasion of personal privacy.

      (31) Public records pertaining to prospective location of a business
or industry where no previous public disclosure has been made of the
business' or industry's interest in locating in, relocating within or expand-
ing within the state. This exception shall not include those records per-
taining to application of agencies for permits or licenses necessary to do
business or to expand business operations within this state, except as
otherwise provided by law.

      (32) The bidder's list of contractors who have requested bid proposals
for construction projects from any public agency, until a bid is accepted
or all bids rejected.

      (33) Engineering and architectural estimates made by or for any pub-
lic agency relative to public improvements.

      (34) (33) Financial information submitted by contractors in qualifi-
cation statements to any public agency.

      (35) (34) Records involved in the obtaining and processing of intel-
lectual property rights that are expected to be, wholly or partially vested
in or owned by a state educational institution, as defined in K.S.A. 76-
711, and amendments thereto, or an assignee of the institution organized
and existing for the benefit of the institution.

      (36) (35) Any report or record which is made pursuant to K.S.A. 65-
4922, 65-4923 or 65-4924, and amendments thereto, and which is privi-
leged pursuant to K.S.A. 65-4915 or 65-4925, and amendments thereto.

      (37) (36) Information which would reveal the precise location of an
archeological site.

      (38) (37) Any financial data or traffic information from a railroad com-
pany, to a public agency, concerning the sale, lease or rehabilitation of
the railroad's property in Kansas.

      (39) (38) Risk-based capital reports, risk-based capital plans and cor-
rective orders including the working papers and the results of any analysis
filed with the commissioner of insurance in accordance with K.S.A. 1999
Supp. 40-2c20, and amendments thereto.

      (40) (39) Memoranda and related materials required to be used to
support the annual actuarial opinions submitted pursuant to subsection
(b) of K.S.A. 40-409, and amendments thereto.

      (41) (40) Disclosure reports filed with the commissioner of insurance
under subsection (a) of K.S.A. 1999 Supp. 40-2,156, and amendments
thereto.

      (42) (41) All financial analysis ratios and examination synopses con-
cerning insurance companies that are submitted to the commissioner by
the national association of insurance commissioners' insurance regulatory
information system.

      (43) (42) Any records the disclosure of which is restricted or prohib-
ited by a tribal-state gaming compact.

      (44) (43) Market research, market plans, business plans and the terms
and conditions of managed care or other third party contracts, developed
or entered into by the university of Kansas medical center in the operation
and management of the university hospital which the chancellor of the
university of Kansas or the chancellor's designee determines would give
an unfair advantage to competitors of the university of Kansas medical
center.

      (b) Except to the extent disclosure is otherwise required by law or as
appropriate during the course of an administrative proceeding or on ap-
peal from agency action, a public agency or officer shall not disclose fi-
nancial information of a taxpayer which may be required or requested by
a county appraiser or the director of property valuation to assist in the
determination of the value of the taxpayer's property for ad valorem tax-
ation purposes; or any financial information of a personal nature required
or requested by a public agency or officer, including a name, job descrip-
tion or title revealing the salary or other compensation of officers, em-
ployees or applicants for employment with a firm, corporation or agency,
except a public agency. Nothing contained herein shall be construed to
prohibit the publication of statistics, so classified as to prevent identifi-
cation of particular reports or returns and the items thereof.

      (c) As used in this section, the term ``cited or identified'' shall not
include a request to an employee of a public agency that a document be
prepared.

      (d) If a public record contains material which is not subject to dis-
closure pursuant to this act, the public agency shall separate or delete
such material and make available to the requester that material in the
public record which is subject to disclosure pursuant to this act. If a public
record is not subject to disclosure because it pertains to an identifiable
individual, the public agency shall delete the identifying portions of the
record and make available to the requester any remaining portions which
are subject to disclosure pursuant to this act, unless the request is for a
record pertaining to a specific individual or to such a limited group of
individuals that the individuals' identities are reasonably ascertainable, the
public agency shall not be required to disclose those portions of the record
which pertain to such individual or individuals.

      (e) The provisions of this section shall not be construed to exempt
from public disclosure statistical information not descriptive of any iden-
tifiable person.

      (f) Notwithstanding the provisions of subsection (a), any public rec-
ord which has been in existence more than 70 years shall be open for
inspection by any person unless disclosure of the record is specifically
prohibited or restricted by federal law, state statute or rule of the Kansas
supreme court or by a policy adopted pursuant to K.S.A. 72-6214, and
amendments thereto.

      Sec.  4. K.S.A. 45-222 is hereby amended to read as follows: 45-222.
(a) The district court of any county in which public records are located
shall have jurisdiction to enforce the purposes of this act with respect to
such records, by injunction, mandamus or other appropriate order, in an
action brought by any person, the attorney general or a county or district
attorney.

      (b) In any action hereunder, the court shall determine the matter de
novo. The court on its own motion, or on motion of either party, may
view the records in controversy in camera before reaching a decision.

      (c) In any action hereunder, the court may shall award attorney fees
to the plaintiff if the court finds that the agency's denial of access to the
public record was not in good faith and without a reasonable basis in fact
or law. The award shall be assessed against the public agency that the
court determines to be responsible for the violation.

      (d) In any action hereunder in which the defendant is the prevailing
party, the court may shall award to the defendant attorney fees if the
court finds that the plaintiff maintained the action not in good faith and
without a reasonable basis in fact or law.

      (e) Except as otherwise provided by law, proceedings arising under
this section shall be assigned for hearing and trial at the earliest practi-
cable date.

      Sec.  5. K.S.A. 45-223 is hereby amended to read as follows: 45-223.
No public agency nor any officer or employee of a public agency shall be
liable for damages resulting from the failure to provide access to a public
record in violation of this act (a) Any public agency subject to this act
that knowingly violates any of the provisions of this act or that intention-
ally fails to furnish information as required by this act shall be liable for
the payment of a civil penalty in an action brought by the attorney general
or county or district attorney, in a sum set by the court of not to exceed
$500 for each violation.

      (b) Any civil penalty sued for and recovered hereunder by the attor-
ney general shall be paid into the state general fund. Any civil penalty
sued for and recovered hereunder by a county or district attorney shall
be paid into the general fund of the county in which the proceedings were
instigated.

      New Sec.  6. In investigating alleged violations of the Kansas open
records act, the attorney general or county or district attorney may:

      (a) Subpoena witnesses, evidence, documents or other material;

      (b) take testimony under oath;

      (c) examine or cause to be examined any documentary material of
whatever nature relevant to such alleged violations;

      (d) require attendance during such examination of documentary ma-
terial and take testimony under oath or acknowledgment in respect of
any such documentary material; and

      (e) serve interrogatories.

      New Sec.  7. In investigating alleged violations of the Kansas open
meetings act, the attorney general or county or district attorney may:

      (a) Subpoena witnesses, evidence, documents or other material;

      (b) take testimony under oath;

      (c) examine or cause to be examined any documentary material of
whatever nature relevant to such alleged violations;

      (d) require attendance during such examination of documentary ma-
terial and take testimony under oath or acknowledgment in respect of
any such documentary material; and

      (e) serve interrogatories.

      New Sec.  8. (a) It is the intent of the legislature that exceptions to
disclosure under the open records act shall be created or maintained only
if:

      (1) The public record is of a sensitive or personal nature concerning
individuals;

      (2) the public record is necessary for the effective and efficient ad-
ministration of a governmental program; or

      (3) the public record affects confidential information.

      The maintenance or creation of an exception to disclosure must be
compelled as measured by these criteria. Further, the legislature finds
that the public has a right to have access to public records unless the
criteria in this section for restricting such access to a public record are
met and the criteria are considered during legislative review in connection
with the particular exception to disclosure to be significant enough to
override the strong public policy of open government. To strengthen the
policy of open government, the legislature shall consider the criteria in
this section before enacting an exception to disclosure.

      (b) All exceptions to disclosure in existence on July 1, 2000, shall
expire on July 1, 2005, and any new exception to disclosure or substantial
amendment of an existing exception shall expire on July 1 of the fifth year
after enactment of the new exception or substantial amendment, unless
the legislature acts to reenact the exception. A law that enacts a new
exception or substantially amends an existing exception shall state that
the exception expires at the end of five years and that the exception shall
be reviewed by the legislature before the scheduled date.

      (c) For purposes of this section, an exception is substantially amended
if the amendment expands the scope of the exception to include more
records or information. An exception is not substantially amended if the
amendment narrows the scope of the exception.

      (d) This section is not intended to repeal an exception that has been
amended following legislative review before the scheduled repeal of the
exception if the exception is not substantially amended as a result of the
review.

      (e) In the year before the expiration of an exception, the revisor of
statutes shall certify to the president of the senate and the speaker of the
house of representatives, by June 1, the language and statutory citation
of each exception which will expire in the following year which meets the
criteria of an exception as defined in this section. Any exception that is
not identified and certified to the president of the senate and the speaker
of the house of representatives is not subject to legislative review and
shall not expire. If the revisor of statutes fails to certify an exception that
the revisor subsequently determines should have been certified, the re-
visor shall include the exception in the following year's certification after
that determination.

      (f) ``Exception'' means any provision of law which creates an excep-
tion to disclosure or limits disclosure under the open records act pursuant
to K.S.A. 45-221, and amendments thereto, or pursuant to any other
provision of law.

      (g) A provision of law which creates or amends an exception to dis-
closure under the open records law shall not be subject to review and
expiration under this act if such provision:

      (1) Is required by federal law;

      (2) applies solely to the legislature or to the state court system.

      (h)  (1) The legislature shall review the exception before its scheduled
expiration and consider as part of the review process the following:

      (A) What specific records are affected by the exception;

      (B) whom does the exception uniquely affect, as opposed to the gen-
eral public;

      (C) what is the identifiable public purpose or goal of the exception;

      (D) whether the information contained in the records may be ob-
tained readily by alternative means and how it may be obtained;

      (2) An exception may be created or maintained only if it serves an
identifiable public purpose and may be no broader than is necessary to
meet the public purpose it serves. An identifiable public purpose is served
if the legislature finds that the purpose is sufficiently compelling to over-
ride the strong public policy of open government and cannot be accom-
plished without the exception and if the exception:

      (A) Allows the effective and efficient administration of a govern-
mental program, which administration would be significantly impaired
without the exception;

      (B) protects information of a sensitive personal nature concerning
individuals, the release of which information would be defamatory to such
individuals or cause unwarranted damage to the good name or reputation
of such individuals or would jeopardize the safety of such individuals.
Only information that would identify the individuals may be excepted
under this paragraph; or

      (C) protects information of a confidential nature concerning entities,
including, but not limited to, a formula, pattern, device, combination of
devices, or compilation of information which is used to protect or further
a business advantage over those who do not know or use it, the disclosure
of which information would injure the affected entity in the marketplace.

      (3) Records made before the date of the expiration of an exception
shall be subject to disclosure as otherwise provided by law. In deciding
whether the records shall be made public, the legislature shall consider
whether the damage or loss to persons or entities uniquely affected by
the exception of the type specified in paragraph (2)(B) or (2)(C) of this
subsection (h) would occur if the records were made public.

      Sec.  9. K.S.A. 14-101 is hereby amended to read as follows: 14-101.
(a) All cities now organized and acting as cities of the second class, by
virtue of the authority of former acts, and all cities hereafter attaining a
population of more than two thousand (2,000) 2,000 and less than fifteen
thousand (15,000) 15,000, shall be governed by the provisions of this act;
and whenever any city shall have hereafter attained a population of more
than two thousand (2,000), and such facts shall have been duly ascertained
and certified by the proper authorities of such city. Except as provided
by this section, whenever the population of a city exceeds 2,000, the gov-
erning body of such city shall certify such fact to the governor,. The
governor shall declare, by public proclamation, such city subject to the
provisions of this act: Provided, That. If the governing body of any city
which has attained a population of more than two thousand (2,000) 2,000
and less than five thousand (5,000) 5,000 shall determine by resolution
duly adopted that it would be more advantageous for such city to continue
to operate as a city of the third class, such governing body shall not be
required to so certify the population of such city to the governor and the
laws relating to the cities of the third class shall continue to be applicable
to such city. The governing body of such city shall, at the time of making
the certificate herein provided for, make out and certification required
by this section shall transmit to the governor an accurate description by
metes and bounds of all the lands included within the limits of such city,
and the additions thereto, if any.

      (b) The change in classification of any city under the provisions of
this section shall take effect on the date the proclamation of the governor
is issued unless a later date is specified therein, in which case the change
and classification shall take place on such later date. The governing board
body of any such city, holding office at the time of the proclamation, shall
continue to be the governing board body of such city and the members
of such board shall hold their respective offices until the next city election
in an odd-numbered year.

      (c) Whenever the governor shall make issues a proclamation as herein
provided for required by this section, it shall be the duty of the mayor of
the city affected thereby to call a meeting of the city council, and the
governing body shall. At such meeting, the governing body shall divide
the city into wards.

      Thereupon, except as is otherwise provided by law, the county election
officer shall provide for registration of voters within ten (10) 10 days.

      (d) The governor or the governor's designee shall send a notice of the
issuance of a proclamation by the governor pursuant to this section to the
county clerk of the county in which such city is located. Such notice also
shall include a statement that land within the corporate limits of such city
is no longer located within the territory of any township. If such city is
located in more than one county, such notice shall be sent to the county
clerk of each county in which such city is located.

      Sec.  10. K.S.A. 14-101, 45-222 and 45-223 and K.S.A. 1999 Supp.
45-221 are hereby repealed.

      Sec.  11. This act shall take effect and be in force from and after its
publication in the statute book.

Approved May 15, 2000.
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