Session of 2000
By Senators Hensley, Barone, Biggs, Downey, Feleciano, Gilstrap,
Gooch, Goodwin, Jones, Lee, Petty, Steineger and Stephens

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


  1       the actual cost of furnishing copies, including the cost of staff time re-
  2       quired to make the information available.
  3             (2) In the case of fees for providing access to records maintained on
  4       computer facilities, the fees shall include only the cost of any computer
  5       services, including staff time required.
  6             (3) Fees for access to or copies of public records of public agencies
  7       within the legislative branch of the state government shall be established
  8       in accordance with K.S.A. 46-1207a and amendments thereto.
  9             (4) Fees for access to or copies of public records of public agencies
10       within the judicial branch of the state government shall be established in
11       accordance with rules of the supreme court.
12             (5) Fees for access to or copies of public records of a public agency
13       within the executive branch of the state government shall be established
14       by the agency head.
15             (6) Any person requesting public records may appeal the reasonable-
16       ness of the fees charged for providing access to or furnishing copies of
17       such records to the secretary of administration freedom of information
18       officer established under section 3 and amendments thereto whose deci-
19       sion shall be final. A fee for copies of public records which is equal to or
20       less than $.25 per page shall be deemed a reasonable fee.
21             (d) Except as otherwise authorized pursuant to K.S.A. 75-4215 and
22       amendments thereto, each public agency within the executive branch of
23       the state government shall remit all moneys received by or for it from
24       fees charged pursuant to this section to the state treasurer in accordance
25       with K.S.A. 75-4215 and amendments thereto. Unless otherwise specifi-
26       cally provided by law, the state treasurer shall deposit the entire amount
27       thereof in the state treasury and credit the same to the state general fund
28       or an appropriate fee fund as determined by the agency head.
29             (e) Each public agency of a political or taxing subdivision shall remit
30       all moneys received by or for it from fees charged pursuant to this act to
31       the treasurer of such political or taxing subdivision at least monthly. Upon
32       receipt of any such moneys, such treasurer shall deposit the entire amount
33       thereof in the treasury of the political or taxing subdivision and credit the
34       same to the general fund thereof, unless otherwise specifically provided
35       by law.
36             (f) Any person who is a certified shorthand reporter may charge fees
37       for transcripts of such person's notes of judicial or administrative pro-
38       ceedings in accordance with rates established pursuant to rules of the
39       Kansas supreme court.
40             Sec.  2. K.S.A. 45-222 is hereby amended to read as follows: 45-222.
41       (a) The district court of any county in which public records are located
42       shall have jurisdiction to enforce the purposes of this act with respect to
43       such records, by injunction, mandamus or other appropriate order, in an


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


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