CHAPTER 178
HOUSE Substitute for SENATE BILL No. 112
An Act amending the open records act; amending K.S.A.
2001 Supp. 45-221
and repealing the existing section.
Be it enacted by the Legislature of the State of Kansas:
Section 1. K.S.A. 2001 Supp. 45-221
is hereby amended to read as
follows: 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) Engineering and architectural
estimates made by or for any pub-
lic agency relative to public improvements.
(33) Financial information submitted by
contractors in qualification
statements to any public agency.
(34) Records involved in the obtaining
and processing of intellectual
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
ex-
isting for the benefit of the institution.
(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
privileged
pursuant to K.S.A. 65-4915 or 65-4925, and amendments thereto.
(36) Information which would reveal the
precise location of an ar-
cheological site.
(37) Any financial data or traffic
information from a railroad company,
to a public agency, concerning the sale, lease or rehabilitation of
the
railroad's property in Kansas.
(38) Risk-based capital reports,
risk-based capital plans and corrective
orders including the working papers and the results of any analysis
filed
with the commissioner of insurance in accordance with K.S.A.
40-2c20
and 45-2d20 40-2d20 and amendments
thereto.
(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.
(40) Disclosure reports filed with the
commissioner of insurance un-
der subsection (a) of K.S.A. 40-2,156, and amendments thereto.
(41) All financial analysis ratios and
examination synopses concerning
insurance companies that are submitted to the commissioner by the
na-
tional association of insurance commissioners' insurance regulatory
infor-
mation system.
(42) Any records the disclosure of which
is restricted or prohibited
by a tribal-state gaming compact.
(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.
(44) The amount of franchise tax paid to
the secretary of state by
domestic corporations, foreign corporations, domestic limited
liability
companies, foreign limited liability companies, domestic limited
partner-
ship, foreign limited partnership, domestic limited liability
partnerships
and foreign limited liability partnerships.
(45) Records the disclosure of which
would pose a substantial likeli-
hood of revealing security measures that protect: (A) Systems,
facilities
or equipment used in the production, transmission or
distribution of en-
ergy, water or communications services; or (B) sewer or
wastewater treat-
ment systems, facilities or equipment. For purposes of this
paragraph,
security means measures that protect against criminal acts
intended to
intimidate or coerce the civilian population, influence
government policy
by intimidation or coercion or to affect the operation of
government by
disruption of public services, mass destruction, assassination
or kidnap-
ping.
(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. 2. K.S.A. 2001 Supp. 45-221 is hereby repealed.
Sec. 3. This act shall take effect and be in force
from and after its
publication in the statute book.
Approved May 29, 2002.
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