Session of 2000
By Representatives Garner, Ballard, Barnes, Burroughs, Crow, Dean,
                Findley, Flaharty, Gilbert, Kirk, Klein, Kuether, M. Long, McClure,
                Nichols, O'Brien, E. Peterson, Reardon, Rehorn, Ruff, Sharp, Span-
                gler, Swenson, Toelkes and Wells

14             AN  ACT concerning open records; access to such records; establishing
15             a freedom of information officer and providing for the powers and
16             duties thereof; amending K.S.A. 45-222 and 45-223 and K.S.A. 1999
17             Supp. 45-219 and repealing the existing sections.
19       Be it enacted by the Legislature of the State of Kansas:
20             Section  1. K.S.A. 1999 Supp. 45-219 is hereby amended to read as
21       follows: 45-219. (a) Any person may make abstracts or obtain copies of
22       any public record to which such person has access under this act. If copies
23       are requested, the public agency may require a written request and ad-
24       vance payment of the prescribed fee. A public agency shall not be re-
25       quired to provide copies of radio or recording tapes or discs, video tapes
26       or films, pictures, slides, graphics, illustrations or similar audio or visual
27       items or devices, unless such items or devices were shown or played to a
28       public meeting of the governing body thereof, but the public agency shall
29       not be required to provide such items or devices which are copyrighted
30       by a person other than the public agency.
31             (b) Copies of public records shall be made while the records are in
32       the possession, custody and control of the custodian or a person desig-
33       nated by the custodian and shall be made under the supervision of such
34       custodian or person. When practical, copies shall be made in the place
35       where the records are kept. If it is impractical to do so, the custodian
36       shall allow arrangements to be made for use of other facilities. If it is
37       necessary to use other facilities for copying, the cost thereof shall be paid
38       by the person desiring a copy of the records. In addition, the public
39       agency may charge the same fee for the services rendered in supervising
40       the copying as for furnishing copies under subsection (c) and may estab-
41       lish a reasonable schedule of times for making copies at other facilities.
42             (c) Except as provided by subsection (f) or where fees for inspection
43       or for copies of a public record are prescribed by statute, each public
44       agency may prescribe reasonable fees for providing access to or furnishing
45       copies of public records, subject to the following:


  1             (1) In the case of fees for copies of records, the fees shall not exceed
  2       the actual cost of furnishing copies, including the cost of staff time re-
  3       quired to make the information available.
  4             (2) In the case of fees for providing access to records maintained on
  5       computer facilities, the fees shall include only the cost of any computer
  6       services, including staff time required.
  7             (3) Fees for access to or copies of public records of public agencies
  8       within the legislative branch of the state government shall be established
  9       in accordance with K.S.A. 46-1207a and amendments thereto.
10             (4) Fees for access to or copies of public records of public agencies
11       within the judicial branch of the state government shall be established in
12       accordance with rules of the supreme court.
13             (5) Fees for access to or copies of public records of a public agency
14       within the executive branch of the state government shall be established
15       by the agency head.
16             (6) Any person requesting public records may appeal the reasonable-
17       ness of the fees charged for providing access to or furnishing copies of
18       such records to the secretary of administration freedom of information
19       officer established under section 4 and amendments thereto whose deci-
20       sion shall be final. A fee for copies of public records which is equal to or
21       less than $.25 per page shall be deemed a reasonable fee.
22             (d) Except as otherwise authorized pursuant to K.S.A. 75-4215 and
23       amendments thereto, each public agency within the executive branch of
24       the state government shall remit all moneys received by or for it from
25       fees charged pursuant to this section to the state treasurer in accordance
26       with K.S.A. 75-4215 and amendments thereto. Unless otherwise specifi-
27       cally provided by law, the state treasurer shall deposit the entire amount
28       thereof in the state treasury and credit the same to the state general fund
29       or an appropriate fee fund as determined by the agency head.
30             (e) Each public agency of a political or taxing subdivision shall remit
31       all moneys received by or for it from fees charged pursuant to this act to
32       the treasurer of such political or taxing subdivision at least monthly. Upon
33       receipt of any such moneys, such treasurer shall deposit the entire amount
34       thereof in the treasury of the political or taxing subdivision and credit the
35       same to the general fund thereof, unless otherwise specifically provided
36       by law.
37             (f) Any person who is a certified shorthand reporter may charge fees
38       for transcripts of such person's notes of judicial or administrative pro-
39       ceedings in accordance with rates established pursuant to rules of the
40       Kansas supreme court.
41             Sec.  2. K.S.A. 45-222 is hereby amended to read as follows: 45-222.
42       (a) The district court of any county in which public records are located
43       shall have jurisdiction to enforce the purposes of this act with respect to


  1       such records, by injunction, mandamus or other appropriate order, in an
  2       action brought by any person, the attorney general or a county or district
  3       attorney.
  4             (b) In any action hereunder, the court shall determine the matter de
  5       novo. The court on its own motion, or on motion of either party, may
  6       view the records in controversy in camera before reaching a decision.
  7             (c) In any action hereunder, the court may shall award attorney fees
  8       to the plaintiff if the court finds that the agency's denial of access to the
  9       public record was not in good faith and without a reasonable basis in fact
10       or law. The award shall be assessed against the public agency that the
11       court determines to be responsible for the violation.
12             (d) In any action hereunder in which the defendant is the prevailing
13       party, the court may award to the defendant attorney fees if the court
14       finds that the plaintiff maintained the action not in good faith and without
15       a reasonable basis in fact or law.
16             (e) Except as otherwise provided by law, proceedings arising under
17       this section shall be assigned for hearing and trial at the earliest practi-
18       cable date.
19             Sec.  3. K.S.A. 45-223 is hereby amended to read as follows: 45-223.
20       No public agency nor any officer or employee of a public agency shall be
21       liable for damages resulting from the failure to provide access to a public
22       record in violation of this act. (a) An individual who denies access to a
23       public record under the open records act without a reasonable basis in
24       fact or law to make such denial shall be liable for the payment of a civil
25       penalty in an action brought by the attorney general or county or district
26       attorney, in a sum set by the court of not to exceed $500 for each violation.
27             (b) Civil penalties sued for and recovered hereunder shall be paid
28       into the state general fund and shall be made available to the freedom of
29       information officer to assist in financing expenditures to provide educa-
30       tional information to public agencies and to the public concerning the
31       provisions of the open records act.
32             New Sec.  4. (a) There is hereby established within the office of the
33       secretary of state a freedom of information officer. The freedom of in-
34       formation officer shall be appointed by the secretary of state within the
35       current unclassified positions authorized for the office of secretary of
36       state, shall be in the unclassified service under the Kansas civil service
37       act and shall serve at the pleasure of the secretary of state. The freedom
38       of information officer shall assist public agencies with the administration
39       of the open records act and shall assist persons requesting public records
40       to obtain access to such records, shall provide educational information to
41       public agencies and to the public at large concerning the provisions of
42       the open records act, shall be available to assist public agencies and per-
43       sons requesting public records to resolve disputes relating to such public


  1       records requests, shall develop guidelines for state agencies and local
  2       units of government covering access to public records, shall investigate
  3       citizens' complaints against public agencies concerning public records,
  4       shall report on or before January 8, 2001, to the legislature and the gov-
  5       ernor recommendations for enhancing enforcement of the open records
  6       act and shall report annually thereafter, on or before the first day of each
  7       legislative session, to the legislature and to the governor any recommen-
  8       dation relating to the enforcement and administration of the open records
  9       act which the freedom of information officer deems appropriate and shall
10       perform such other duties as may be specified by law. Any decision of
11       the freedom of information officer concerning access to a public record
12       shall be final and binding on the official custodian of the record.
13             (b) This section shall be part of and supplemental to the open records
14       act. 
15       Sec.  5. K.S.A. 45-222 and 45-223 and K.S.A. 1999 Supp. 45-219 are
16       hereby repealed.
17        Sec.  6. This act shall take effect and be in force from and after its
18       publication in the Kansas register.