Kansas
Based on his experiences,
Kansas City Star database editor Greg Reeves said he would describe the
state of open records in Kansas as "pretty grim." Reeves and other
journalists report lengthy struggles to negotiate down high fees. Drivers records
are available online for a fee. Death records and birth records are closed.
On the plus side, Reeves says, "we’ve received data on bad bridges,
restaurant inspections, building inspections, road conditions and voter registration,
to name a few, with little or no trouble."
The law. The
Open Records Act defines a public record as "any recorded information,
regardless of form or characteristics." Kan. Stat. Ann. § 45-217(f)(1).
The act anticipates access to electronic records by providing fees for such
access. The statute exempts from disclosure "software programs for electronic
data processing and documentation thereof." It requires the agency to "maintain
a register, open to the public," describing information in electronic records
and the form in which that information can be supplied "using existing
computer programs." § 45-221(16). Many records are now available electronically
through the Information Network of Kansas.
Cases &
opinions. Information stored in computers is a public record subject to
disclosure. The agency must compile specific information requested, but may
require the requester to pay the costs of programming the computer to retrieve
that information and of deleting nondisclosable material. Kansas ex rel.
Stephan v. Harder, 641 P.2d 366 (Kan. 1982). A requester has the right to
obtain a computerized voter registration list in computer format if the public
agency is capable of providing the record in that format. Kan. Op. Att’y
Gen. 88-152 (Oct. 27, 1988). An agency is not required to acquire or design
a special program to produce information in a desired format, but may allow
the requester to design or provide a computer program to do so. Kan. Op. Att’y
Gen. 89-106 (Aug. 21, 1989).
State open records
provisions apply to all public records contained on a county computer system
even when access is through paid subscription and these records remain public
and must be available upon a record request. Kan. Op. Atty. Gen. 95-64 (June
20, 1995). A county appraiser’s office must provide access to the office
database, as long as the records requested are open records and the format is
available. A requester may repackage the data in a different format for sale.
Kan. Op. Att’y. Gen. 94-104 (Aug. 19, 1994).
Any person has
the right to obtain a computerized voter registration list in computer format
if the public agency has the capability of providing such record in computer
format. Op.Atty.Gen 88-152 (1988) See also Kan. Stat. Ann. § 45-501.
The Kansas Attorney
General opines that the form of a public record, computerized or hard copy,
does not alter the applicability of the Kansas Open Records Act, K.S.A. 42-215,
et seq. Kan. Op. Atty. Gen. 95-64 (1995).
Fees.
An agency may charge for providing access to or furnishing copies of public
records, and may demand advance payment and a written request. Kan. Stat. Ann.
§ 45-218 (1997). Fees "shall not exceed the actual cost of furnishing
copies, including the cost of staff time required to make the information available."
§ 45-219(c)(1). "Fees for providing access to records maintained on
computer facilities . . . shall include only the cost of any computer services,
including staff time required." § 45-219(c)(2). A fee of 25 cents
per page is deemed to be a reasonable fee for records held by agencies under
the executive branch of government. § 45-219(c)(5). Fees for judicial branch
records are to be established by state supreme court rules. § 45-219(c)(4).
Public records accessible through a county’s proprietary computer system
are available "at a fee not exceeding their actual cost of production."
Kan. Op. Atty. Gen. 95-64 (June 20, 1995).
Fees for providing
access to records maintained on computer facilities shall include only the cost
of any computer services, including the staff time required. Kan. Stat. Ann.
§ 45-219(c)(2).
The Secretary of
Revenue is authorized to fix, charge and collect fees to provide access to or
to furnish copies of public data in the Vehicle Information Processing System
(VIPS), the Kansas Computer Assisted Mass Appraisal System (KS CAMA) and other
electronic database systems of the Department of Revenue. These fees shall be
in the amount to recover all or part of the costs incurred in providing access
to or furnishing copies of the data that is stored or maintained on such system.
§ 74-2022.
Software.
A public agency is not required to disclose software programs for electronic
data processing and documentation thereof, but each public agency shall maintain
a register that is open to the public which describes: (1) the information that
the agency maintains on computer facilities, and (2) the form in which this
information can be made available using the existing computer programs. Kan.
Stat. Ann. § 45-221(a)(16).
E-mail. A record created by use of e-mail may be subject to the KORA if the
electronic record in question meets the definition of "public record"
found in Kan. Stat. Ann. § 45-217. Whether e-mail communications between
or involving individual city commissioners are "public records" will
depend upon whether such e-mail communications are "made, maintained, or
kept by or [are] in the possession of a public agency," and whether any
of the exceptions to the definition apply. The statutory definition of the term
"public agency" includes political and taxing subdivisions and their
officers or employees. However, the definition of a "public record"
excludes records that are "made, maintained or kept by an individual who
is a member of . . . the governing body of any political or taxing subdivision."
Thus, if a specific e-mail communication is not made, maintained or kept by
the city, but rather is exclusively made, maintained or kept only by the individual
city commission members, it is not a "public record" as defined by
Kan. Stat. Ann. § 45-217. Kan. Op. Atty. Gen. 2002-1 (Jan. 3, 2002).
The Kansas Open
Records Act (KORA) declares the public policy of the state to be that "public
records shall be open for inspection by any person" and the KORA is to
be "liberally construed and applied to promote such policy." The effect
of this provision is that all public records are open unless otherwise permissibly
or mandatorily closed by law. Section 45-221(a) lists various categories of
records that a public agency may discretionarily close. "The burden of
proving that an item is exempt from disclosure is on the agency not disclosing."
Records may be
closed under the Kansas Open Records Act exception only for a "clearly
unwarranted invasion of personal privacy" when release would be highly
offensive, reveal intimate details of personal life, or present an unusual danger.
In instances in which there is no other statutory authority to close names and
addresses, they are presumed open, absent special circumstances. Kan. Stat.
Ann. §§ 21-3914, 45-216, 45-221.
Disclosure of a
list of members of a public golf club should be open to public inspection.
"Membership
at a golf course, however, is not unusually embarrassing. It is a public activity
played at a public facility. Nor does disclosure of golfers’ names and
addresses present any special danger. Absent actual knowledge that disclosure
of a particular name or names on the list would create a special hazard (such
as a woman who has notified the city that she has moved from an abusive spouse
and is in hiding), we believe the entire list is open." The attorney general
noted that with the expansion of easily available information through the Internet,
privacy interests may be changing. But the attorney general also noted that
given current statutes and the tradition in Kansas that names and addresses
are open, any large shift in openness of names and addresses is a policy decision
for the legislature to make. Kan. Op. Atty. Gen. 2001-33 (July 26, 2001).
In Wichita Eagle
and Beacon Publishing Company, Inc. v. Simmons, the newspaper sought an
order and judgment in mandamus to compel Charles Simmons, Secretary of Corrections
for the State of Kansas, to provide reporters with access to and/or copies of
correctional records, including documents that would identify releasees who
were charged with murder or manslaughter from 1996 through 1999, under the Kansas
Open Records Act (KORA), Kan. Stat. Ann. § 45-215 et seq. The district
court determined that supervision history records were privileged pursuant to
§ 22-3711 and § 45-221(a)(20) and that the work-product doctrine would
exempt documents and other tangible things prepared in anticipation of litigation
from disclosure under KORA. In addition, the district court found that production
of the records would be contrary to the public policy encouraging self-critical
analysis and that redaction of the remaining information by the secretary of
corrections would leave little to be disclosed. The district court stated the
newspaper could glean the remaining information from alternate and more appropriate
sources. The state supreme court found that the district court did not err when
it denied the secretary of corrections’ motion for summary judgment in
its entirety. However, the appellate court did find that the district court
erred in concluding that the Department of Corrections need not furnish redacted
records. "We find the language of the KORA provision clear and unequivocal.
It mandates that a 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.’" (Emphasis added.)
§ 45-221(d). It is the duty of a public agency to make available records
containing material disclosure. Wichita Eagle and Beacon Publishing Company,
Inc. v. Simmons, 50 P.3d 66 (Kan. 2002).
The Kansas Bureau
of Investigation’s disclosure over the Internet of sex-offender registration,
when construed in harmony with the Kansas Open Records Act, does not violate
the Kansas Sex Offender Registration Act, a unanimous supreme court held in
2000. The court held that sex offenders have been on notice since April 14,
1994, that if they commit certain crimes they will be subject to public disclosure.
State v. Edward B. Wilkinson, 9 P.3d 1 (Kan. 2000).
Resources. Kansas Court/Attorney General Opinion search