Session of 2000
By Committee on Governmental Organization and Elections

  9             AN  ACT concerning the open records act; concerning records not re-
10             quired to be open; amending K.S.A. 45-215 and K.S.A. 1999 Supp.
11             45-221 and repealing the existing sections.
13       Be it enacted by the Legislature of the State of Kansas:
14             Section  1. K.S.A. 45-215 is hereby amended to read as follows: 45-
15       215. K.S.A. 45-215 through 45-223 and section 3, and amendments
16       thereto, shall be known and may be cited as the open records act.
17             Sec.  2. K.S.A. 1999 Supp. 45-221 is hereby amended to read as fol-
18       lows: 45-221. (a) Except to the extent disclosure is otherwise required by
19       law, a public agency shall not be required to disclose:
20             (1) Records the disclosure of which is specifically prohibited or re-
21       stricted by federal law, state statute or rule of the Kansas supreme court
22       or the disclosure of which is prohibited or restricted pursuant to specific
23       authorization of federal law, state statute or rule of the Kansas supreme
24       court to restrict or prohibit disclosure.
25             (2) Records which are privileged under the rules of evidence, unless
26       the holder of the privilege consents to the disclosure.
27             (3) Medical, psychiatric, psychological or alcoholism or drug depend-
28       ency treatment records which pertain to identifiable patients.
29             (4) Personnel records, performance ratings or individually identifia-
30       ble records pertaining to employees or applicants for employment, except
31       that this exemption shall not apply to the names, positions, salaries and
32       lengths of service of officers and employees of public agencies once they
33       are employed as such.
34             (5) Information which would reveal the identity of any undercover
35       agent or any informant reporting a specific violation of law.
36             (6) Letters of reference or recommendation pertaining to the char-
37       acter or qualifications of an identifiable individual.
38             (7) Library, archive and museum materials contributed by private
39       persons, to the extent of any limitations imposed as conditions of the
40       contribution.
41             (8) Information which would reveal the identity of an individual who
42       lawfully makes a donation to a public agency, if anonymity of the donor
43       is a condition of the donation.


  1             (9) Testing and examination materials, before the test or examination
  2       is given or if it is to be given again, or records of individual test or ex-
  3       amination scores, other than records which show only passage or failure
  4       and not specific scores.
  5             (10) Criminal investigation records, except that the district court, in
  6       an action brought pursuant to K.S.A. 45-222, and amendments thereto,
  7       may order disclosure of such records, subject to such conditions as the
  8       court may impose, if the court finds that disclosure:
  9             (A) Is in the public interest;
10             (B) would not interfere with any prospective law enforcement action;
11             (C) would not reveal the identity of any confidential source or un-
12       dercover agent;
13             (D) would not reveal confidential investigative techniques or proce-
14       dures not known to the general public;
15             (E) would not endanger the life or physical safety of any person; and
16             (F) would not reveal the name, address, phone number or any other
17       information which specifically and individually identifies the victim of any
18       sexual offense in article 35 of chapter 21 of the Kansas Statutes Anno-
19       tated, and amendments thereto.
20             (11) Records of agencies involved in administrative adjudication or
21       civil litigation, compiled in the process of detecting or investigating vio-
22       lations of civil law or administrative rules and regulations, if disclosure
23       would interfere with a prospective administrative adjudication or civil
24       litigation or reveal the identity of a confidential source or undercover
25       agent.
26             (12) Records of emergency or security information or procedures of
27       a public agency, or plans, drawings, specifications or related information
28       for any building or facility which is used for purposes requiring security
29       measures in or around the building or facility or which is used for the
30       generation or transmission of power, water, fuels or communications, if
31       disclosure would jeopardize security of the public agency, building or
32       facility.
33             (13) The contents of appraisals or engineering or feasibility estimates
34       or evaluations made by or for a public agency relative to the acquisition
35       of property, prior to the award of formal contracts therefor.
36             (14) Correspondence between a public agency and a private individ-
37       ual, other than correspondence which is intended to give notice of an
38       action, policy or determination relating to any regulatory, supervisory or
39       enforcement responsibility of the public agency or which is widely dis-
40       tributed to the public by a public agency and is not specifically in response
41       to communications from such a private individual.
42             (15) Records pertaining to employer-employee negotiations, if dis-
43       closure would reveal information discussed in a lawful executive session


  1       under K.S.A. 75-4319, and amendments thereto.
  2             (16) Software programs for electronic data processing and documen-
  3       tation thereof, but each public agency shall maintain a register, open to
  4       the public, that describes:
  5             (A) The information which the agency maintains on computer facil-
  6       ities; and
  7             (B) the form in which the information can be made available using
  8       existing computer programs.
  9             (17) Applications, financial statements and other information sub-
10       mitted in connection with applications for student financial assistance
11       where financial need is a consideration for the award.
12             (18) Plans, designs, drawings or specifications which are prepared by
13       a person other than an employee of a public agency or records which are
14       the property of a private person.
15             (19) Well samples, logs or surveys which the state corporation com-
16       mission requires to be filed by persons who have drilled or caused to be
17       drilled, or are drilling or causing to be drilled, holes for the purpose of
18       discovery or production of oil or gas, to the extent that disclosure is limited
19       by rules and regulations of the state corporation commission.
20             (20) Notes, preliminary drafts, research data in the process of anal-
21       ysis, unfunded grant proposals, memoranda, recommendations or other
22       records in which opinions are expressed or policies or actions are pro-
23       posed, except that this exemption shall not apply when such records are
24       publicly cited or identified in an open meeting or in an agenda of an open
25       meeting.
26             (21) Records of a public agency having legislative powers, which re-
27       cords pertain to proposed legislation or amendments to proposed legis-
28       lation, except that this exemption shall not apply when such records are:
29             (A) Publicly cited or identified in an open meeting or in an agenda
30       of an open meeting; or
31             (B) distributed to a majority of a quorum of any body which has au-
32       thority to take action or make recommendations to the public agency with
33       regard to the matters to which such records pertain.
34             (22) Records of a public agency having legislative powers, which re-
35       cords pertain to research prepared for one or more members of such
36       agency, except that this exemption shall not apply when such records are:
37             (A) Publicly cited or identified in an open meeting or in an agenda
38       of an open meeting; or
39             (B) distributed to a majority of a quorum of any body which has au-
40       thority to take action or make recommendations to the public agency with
41       regard to the matters to which such records pertain.
42             (23) Library patron and circulation records which pertain to identi-
43       fiable individuals.


  1             (24) Records which are compiled for census or research purposes and
  2       which pertain to identifiable individuals.
  3             (25) Records which represent and constitute the work product of an
  4       attorney.
  5             (26) Records of a utility or other public service pertaining to individ-
  6       ually identifiable residential customers of the utility or service, except that
  7       information concerning billings for specific individual customers named
  8       by the requester shall be subject to disclosure as provided by this act.
  9             (27) Specifications for competitive bidding, until the specifications
10       are officially approved by the public agency.
11             (28) Sealed bids and related documents, until a bid is accepted or all
12       bids rejected.
13             (29) Correctional records pertaining to an identifiable inmate or re-
14       lease, except that:
15             (A) The name; photograph and other identifying information; sen-
16       tence data; parole eligibility date; custody or supervision level; disciplinary
17       record; supervision violations; conditions of supervision, excluding
18       requirements pertaining to mental health or substance abuse counseling;
19       location of facility where incarcerated or location of parole office main-
20       taining supervision and address of a releasee whose crime was committed
21       after the effective date of this act shall be subject to disclosure to any
22       person other than another inmate or releasee, except that the disclosure
23       of the location of an inmate transferred to another state pursuant to the
24       interstate corrections compact shall be at the discretion of the secretary
25       of corrections;
26             (B) the ombudsman of corrections, the attorney general, law enforce-
27       ment agencies, counsel for the inmate to whom the record pertains and
28       any county or district attorney shall have access to correctional records to
29       the extent otherwise permitted by law;
30             (C) the information provided to the law enforcement agency pursu-
31       ant to the sex offender registration act, K.S.A. 22-4901, et seq., and
32       amendments thereto, shall be subject to disclosure to any person, except
33       that the name, address, telephone number or any other information which
34       specifically and individually identifies the victim of any offender required
35       to register as provided by the Kansas offender registration act, K.S.A. 22-
36       4901 et seq. and amendments thereto, shall not be disclosed; and
37             (D) records of the department of corrections regarding the financial
38       assets of an offender in the custody of the secretary of corrections shall
39       be subject to disclosure to the victim, or such victim's family, of the crime
40       for which the inmate is in custody as set forth in an order of restitution
41       by the sentencing court.
42             (30) Public records containing information of a personal nature
43       where the public disclosure thereof would constitute a clearly unwar-


  1       ranted invasion of personal privacy.
  2             (31) Public records pertaining to prospective location of a business
  3       or industry where no previous public disclosure has been made of the
  4       business' or industry's interest in locating in, relocating within or expand-
  5       ing within the state. This exception shall not include those records per-
  6       taining to application of agencies for permits or licenses necessary to do
  7       business or to expand business operations within this state, except as
  8       otherwise provided by law.
  9             (32) The bidder's list of contractors who have requested bid proposals
10       for construction projects from any public agency, until a bid is accepted
11       or all bids rejected.
12             (33) Engineering and architectural estimates made by or for any pub-
13       lic agency relative to public improvements.
14             (34) Financial information submitted by contractors in qualification
15       statements to any public agency.
16             (35) Records involved in the obtaining and processing of intellectual
17       property rights that are expected to be, wholly or partially vested in or
18       owned by a state educational institution, as defined in K.S.A. 76-711, and
19       amendments thereto, or an assignee of the institution organized and ex-
20       isting for the benefit of the institution.
21             (36) Any report or record which is made pursuant to K.S.A. 65-4922,
22       65-4923 or 65-4924, and amendments thereto, and which is privileged
23       pursuant to K.S.A. 65-4915 or 65-4925, and amendments thereto.
24             (37) Information which would reveal the precise location of an ar-
25       cheological site.
26             (38) Any financial data or traffic information from a railroad company,
27       to a public agency, concerning the sale, lease or rehabilitation of the
28       railroad's property in Kansas.
29             (39) Risk-based capital reports, risk-based capital plans and corrective
30       orders including the working papers and the results of any analysis filed
31       with the commissioner of insurance in accordance with K.S.A. 1999 Supp.
32       40-2c20, and amendments thereto.
33             (40) Memoranda and related materials required to be used to support
34       the annual actuarial opinions submitted pursuant to subsection (b) of
35       K.S.A. 40-409, and amendments thereto.
36             (41) Disclosure reports filed with the commissioner of insurance un-
37       der subsection (a) of K.S.A. 1999 Supp. 40-2,156, and amendments
38       thereto.
39             (42) All financial analysis ratios and examination synopses concerning
40       insurance companies that are submitted to the commissioner by the na-
41       tional association of insurance commissioners' insurance regulatory infor-
42       mation system.
43             (43) Any records the disclosure of which is restricted or prohibited


  1       by a tribal-state gaming compact.
  2             (44) Market research, market plans, business plans and the terms and
  3       conditions of managed care or other third party contracts, developed or
  4       entered into by the university of Kansas medical center in the operation
  5       and management of the university hospital which the chancellor of the
  6       university of Kansas or the chancellor's designee determines would give
  7       an unfair advantage to competitors of the university of Kansas medical
  8       center.
  9             (b) Except to the extent disclosure is otherwise required by law or as
10       appropriate during the course of an administrative proceeding or on ap-
11       peal from agency action, a public agency or officer shall not disclose fi-
12       nancial information of a taxpayer which may be required or requested by
13       a county appraiser or the director of property valuation to assist in the
14       determination of the value of the taxpayer's property for ad valorem tax-
15       ation purposes; or any financial information of a personal nature required
16       or requested by a public agency or officer, including a name, job descrip-
17       tion or title revealing the salary or other compensation of officers, em-
18       ployees or applicants for employment with a firm, corporation or agency,
19       except a public agency. Nothing contained herein shall be construed to
20       prohibit the publication of statistics, so classified as to prevent identifi-
21       cation of particular reports or returns and the items thereof.
22             (c) As used in this section, the term "cited or identified" shall not
23       include a request to an employee of a public agency that a document be
24       prepared.
25             (d) If a public record contains material which is not subject to dis-
26       closure pursuant to this act, the public agency shall separate or delete
27       such material and make available to the requester that material in the
28       public record which is subject to disclosure pursuant to this act. If a public
29       record is not subject to disclosure because it pertains to an identifiable
30       individual, the public agency shall delete the identifying portions of the
31       record and make available to the requester any remaining portions which
32       are subject to disclosure pursuant to this act, unless the request is for a
33       record pertaining to a specific individual or to such a limited group of
34       individuals that the individuals' identities are reasonably ascertainable, the
35       public agency shall not be required to disclose those portions of the record
36       which pertain to such individual or individuals.
37             (e) The provisions of this section shall not be construed to exempt
38       from public disclosure statistical information not descriptive of any iden-
39       tifiable person.
40             (f) Notwithstanding the provisions of subsection (a), any public rec-
41       ord which has been in existence more than 70 years shall be open for
42       inspection by any person unless disclosure of the record is specifically
43       prohibited or restricted by federal law, state statute or rule of the Kansas


  1       supreme court or by a policy adopted pursuant to K.S.A. 72-6214, and
  2       amendments thereto.
  3             (g) The provisions of this section shall expire on July 1, 2005.
  4             New Sec.  3. (a) It is the intent of the legislature that exceptions to
  5       disclosure under the open records act shall be created or maintained only
  6       if:
  7             (1) The record is of a sensitive or personal nature concerning
  8       individuals;
  9             (2) the record is necessary for the effective and efficient administra-
10       tion of a governmental program; or
11             (3) the public records affects confidential information.
12             The maintenance or creation of an exception to disclosure must be
13       compelled as measured by these criteria. Further, the legislature finds
14       that the public has a right to have access to public records unless the
15       criteria in this section for restricting such access to a public record are
16       met and the criteria are considered during legislative review in connection
17       with the particular exception to disclosure to be significant enough to
18       override the strong public policy of open government. To strengthen the
19       policy of open government, the legislature shall consider the criteria in
20       this section before enacting an exception to disclosure.
21             (b) Any new exception to disclosure or substantial amendment of an
22       existing exception shall expire on July 1 of the fifth year after enactment
23       of the new exception or substantial amendment, unless the legislature
24       acts to reenact the exception. A law that enacts a new exception or sub-
25       stantially amends an existing exception shall state that the exception ex-
26       pires at the end of five years and that the exception shall be reviewed by
27       the legislature before the scheduled date.
28             (c) For purposes of this section, an exception is substantially amended
29       if the amendment expands the scope of the exception to include more
30       records or information. An exception is not substantially amended if the
31       amendment narrows the scope of the exception.
32             (d) This section is not intended to repeal an exception that has been
33       amended following legislative review before the scheduled repeal of the
34       exception if the exception is not substantially amended as a result of the
35       review.
36             (e) In the year before the expiration of an exception, the revisor of
37       statutes shall certify to the president of the senate and the speaker of the
38       house of representatives, by June 1, the language and statutory citation
39       of each exception which will expire in the following year which meets the
40       criteria of an exception as defined in this section. Any exception that is
41       not identified and certified to the president of the senate and the speaker
42       of the house of representatives is not subject to legislative review and
43       shall not expire. If the revisor of statutes fails to certify an exception that


  1       the revisor subsequently determines should have been certified, the re-
  2       visor shall include the exception in the following year's certification after
  3       that determination.
  4             (f) "Exception" means a provision of law which creates an exception
  5       to the open records act.
  6             (g) A provision of law which creates or amends an exception to dis-
  7       closure under the open records law shall not be subject to review and
  8       expiration under this act if such provision:
  9             (1) Is required by federal law;
10             (2) applies solely to the legislature or to the state court system.
11             (h)  (1) The legislature shall review the exception before its scheduled
12       expiration and consider as part of the review process the following:
13             (A) What specific records are affected by the exception;
14             (B) whom does the exception uniquely affect, as opposed to the gen-
15       eral public;
16             (C) what is the identifiable public purpose or goal of the exception;
17             (D) whether the information contained in the records be readily ob-
18       tained by alternative means and how it may be obtained;
19             (2) An exception may be created or maintained only if it serves an
20       identifiable public purpose and may be no broader than is necessary to
21       meet the public purpose it serves. An identifiable public purpose is served
22       if the exception meets one of the following purposes and the legislature
23       finds that the purpose is sufficiently compelling to override the strong
24       public policy of open government and cannot be accomplished with the
25       exception:
26             (A) Allows the effective and efficient administration of a govern-
27       mental program, which administration would be significantly impaired
28       without the exception;
29             (B) protects information of a sensitive personal nature concerning
30       individuals, the release of which information would be defamatory to such
31       individuals or cause unwarranted damage to the good name or reputation
32       of such individuals or would jeopardize the safety of such individuals.
33       Only information that would identify the individuals may be excepted
34       under this paragraph; or
35             (C) protects information of a confidential nature concerning entities,
36       including, but not limited to, a formula, pattern, device, combination of
37       devices, or compilation of information which is used to protect or further
38       a business advantage over those who do not know or use it, the disclosure
39       of which information would injure the affected entity in the marketplace.
40             (3) Records made before the date of the expiration of an exception
41       may not be made public unless otherwise provided by law. In deciding
42       whether the records shall be made public, the legislature shall consider
43       whether the damage or loss to persons or entities uniquely affected the


  1       exception of the type specified in paragraph (2)(B) or (2)(C) of this sub-
  2       section (h) would occur if the records were made public. 
  3       Sec.  4. K.S.A. 45-215 and K.S.A. 1999 Supp. 45-221 are hereby
  4       repealed.
  5        Sec.  5. This act shall take effect and be in force from and after its
  6       publication in the statute book.