Brief (1)
Senate Sub. for Sub. for HB 2864 amends the Kansas Open Records Act (KORA) to require the governing body of every public agency to designate a local freedom of information officer to display a brochure listing the rights, responsibilities, and procedures for requesting records. The bill requires attorneys fees be paid to persons requesting records or to public agencies when the denial of access or the request for records was not in good faith or was without a reasonable basis. Current law permits the award of attorneys fees. Public agencies are also made subject to a $500 civil penalty. Finally, the open records exception regarding bidders lists of contractors is repealed.
The bill provides the governing body of every public agency in Kansas which maintains public records must designate a local freedom of information officer. The local freedom of information officer or the designee is required to:
The bill provides that any public agency which denies access to a public record under the Open Records Act without a reasonable basis in fact or law to make such denial, and with specific intent to violate 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.
The Senate Committee of the Whole amendment deleted a requirement that local freedom of information officers issue advisory opinions and made technical amendments.
Background
Conferees before the Senate Elections and Local Government Committee agreed that the House Committee of the Whole version of Sub. for HB 2864 would actually make it more difficult for persons to resolve disputes regarding access to records. Senate Sub. for Sub. for HB 2864 represents a compromise by proponents of changes to the KORA and those conferees who believed the current law was adequate. Groups that met to work on Senate Sub. for Sub. for HB 2864 included the Kansas Press Association, the Kansas Association of Broadcasters, the Kansas Association of School Boards, the Kansas Association of Counties, and the League of Kansas Municipalities.
In the House, the House Local Government Committee held hearings over a period of weeks on the issue of amending the KORA and the Kansas Open Meetings Act (KOMA).
Both the Governor's Office and the Kansas Attorney General's Office supported various amendments to KORA and KOMA incorporated in HB 2864. Others who supported changes to the law included the House Minority Leader, the Senate Minority Leader, several other legislators, representatives of the Kansas Press Association, the Kansas Association of Broadcasters, the Wichita Eagle, the Emporia Gazette, the Kansas City Star, the Kansas City, Kansan, the Kansas Sunshine Coalition for Open Government, a property appraiser, and several citizens.
Those who appeared before the House Committee expressing the belief that the current law was adequate and that no changes were needed, included the Kansas Association of School Boards, League of Kansas Municipalities, the Kansas Association of Counties, the Kansas Peace Officers Association, the Kansas Sheriff's Association, the Kansas County Clerks Association, the cities of Wichita and Overland Park, and the Wichita Public schools.
The version of the bill, House Sub. for HB 2864 as passed by the House Committee of the Whole, makes major amendments to KORA and KOMA as follows.
Public Information Officer. The bill establishes the position of public information officer within the Attorney General's Office. Duties of the officer include: to prepare and provide educational materials concerning both laws; to assist in resolving disputes between public agencies and members of the public; to respond to inquiries; to issue advisory opinions; to establish content criteria for signs (notices) required to be posted under both laws; to conduct formal hearings to resolve disputes for both laws under the Kansas Administrative Procedure Act; to determine the reasonableness of fees charged for records; and to adopt rules and regulations. The public information officer shall not be subject to any action for failure to act or for performing any duties under this act, KORA, and KOMA.
Administrative Procedures for Complaints. Any county or district attorney, or any person aggrieved by an alleged violation of either act may bring an action before the public information officer within 45 days of the alleged violation. Hearings shall be conducted in accord with the Kansas Administrative Procedure Act. The public information officer may review records in camera in any action but this review shall be subject to the provisions of the lawyer-client privilege. The public information officer must render a decision within 45 days of the date on which an answer to the complaint is filed unless the parties otherwise agree. Appeals may be taken under the Act for Judicial Review and Civil Enforcement of Agency Actions. The public information officer may assess a civil fine of not to exceed $500 for violations of either law and may assess costs against the parties to the proceeding.
Advisory Opinions. At the request of any person, the public access officer shall issue advisory opinions relating to KOMA and KORA and the enforcement thereof. The public access officer shall cause to be published on the Internet and otherwise opinions, decisions, orders, and related materials issued or provided by the public access officer.
District Court, Attorneys Fees, Civil Penalties, Enforcement Fund. A complaint under KORA or KOMA may be filed by the Attorney General or county or district attorney in district court without undergoing the administrative procedure. (The Attorney General may not use the administrative procedure.) The district court may award attorneys fees to the complaining party when an advisory opinion has been issued by the public information officer and the public agency fails to comply and may impose a civil fine of not to exceed $500. Further, attorney fees may be awarded to the defendant for frivolous or bad faith actions or when there is no reasonable basis for the suit.
A civil penalty not to exceed $500 may be imposed against a public agency if the public records custodian of the agency fails to disclose a record not exempt from disclosure. Any civil penalty shall be paid into the State General Fund and shall be made available to the public access officer to assist in financing expenditures to provide educational information to public agencies and to the public concerning the provisions of KORA. KOMA is amended to provide civil penalties (available under current law) awarded under that law shall be used for the same purpose as noted above.
An open records and open meetings enforcement fund is created in the State Treasury. All moneys from fines and penalties are to be paid into this fund. Moneys are to be used for educational purposes.
Informal Procedure. The public information officer is authorized to establish an informal procedure for resolution of disputes relating to alleged violation of both laws.
Open Records Sunset of Exemption; Other Changes. All existing exceptions to KORA would sunset in five years (July 1, 2005), except Exception No. 32 dealing with lists of contract bidders which is repealed. Further, criteria is established which the Legislature must consider when enacting new exceptions to the KORA and each new exception is subject to a five-year sunset.
Time Frame for Records Production. If the records are on site, the request must be processed at the time the request is received. If the public record is not on-site, the records shall be retrieved not later than the end of the third business day following the date that the request is received. If the record must be constructed and prepared, the record shall be available not later than the end of the seventh business day following the date that the request is received.
Notice Listing Rights Under KORA and KOMA Required. Notice listing the rights of records requestors and responsibilities of public agencies under KORA must be displayed at the central administrative office in a conspicuous place at the principal office of the body or agency by public agencies. Further, signs listing the rights of the public and responsibilities of public bodies under KOMA also must be displayed.
Tapes of Executive Sessions Prohibited; Personnel Exception Narrowed; Employer-Employee Exception Amended. Closed or executive meetings shall not be taped or otherwise recorded.
The discussion of personnel matters exception permitting an executive session of a public body is narrowed to permit an executive session to discuss only hiring, termination, discipline, or performance evaluations and complaints and grievances against personnel.
The employer-employee negotiations exception is amended to provide this exception may not be used to discuss the election of a public agency, to come with provisions of the Public Employer-Employee Relations Act (PEER).
Private Entity Records. Records of any private entity or organization shall not be subject to disclosure. Specifically mentioned among other items that are not to be disclosed are balance sheets, income statements, and federal income tax statements.
Investigative Powers of the Attorney General and Local Prosecutors (KORA and KOMA). Investigative powers of prosecutors are listed to include among others: subpoena witnesses, take testimony under oath, and serve interrogatories.
Attorney General's Office Subject of Open Records Complaint. The duty to investigate and prosecute Attorney General violations of KORA is placed with the Secretary of State (Section 18).
1. *Supplemental notes are prepared by the Legislative Research Department and do not express legislative intent. The supplemental note and fiscal note for this bill may be accessed on the Internet at http://www.ink.org/public/legislative/bill_search.html