FOREWORD

Open Records. Kansas law on open records and open meetings is statutory. The Kansas Open Records Act, K.S.A. 45-215, et seq., (KORA) was enacted in 1984; the Kansas Open Meetings Act, K.S.A. 75-4317, et seq., (KOMA) was passed in 1972. The statutes are unrelated and do not overlap but are to be construed together. A few dozen reported decisions construing either act exist, and there is a large volume of Attorney General's Opinions and a small number of unreported trial court decisions.

The predecessor to the current Kansas Open Records Act, K.S.A. 45-201, was enacted in 1957. The present statute became law in 1984, after having been first proposed in 1979. It is designed to be comprehensive, although no effort was made to glean all references to open or restricted access records from all Kansas statutes. Accordingly, specific provisions in other laws still control some open records exemptions. A recent study by the Revisor of Statutes located over 350 statutes that close specific types of records.

The former statute required open access only to those records "required to be kept and maintained." The few cases litigated addressed whether the record was required to be kept, or merely was incidentally kept. Judging by the cases, public interest in open records was slight until the post-Watergate era. In the late 1970s, disputes over the meaning of the Open Records Act, which was written negatively, i.e., that all records could be closed except those required to be kept and maintained, resulted in court interpretations favoring common law although not constitutional access. Stephens v. Van Arsdale, 227 Kan. 676, 608 P.2d 972 (1980).

At the urging of the Kansas Attorney General and other interested groups and particularly the media and local government groups, the legislature began to address enacting a new statute in 1979. Initial drafts were based largely on the Kentucky law, but the final version, including its characteristic laundry list of exceptions, was hammered out in committee, making the bill virtually entirely original.

The principal reason for delay was the divisive abortion records issue. Right to Life in Kansas Inc. had requested access to Medicaid records kept by the Department of Social and Rehabilitative Services identifying doctors who performed abortions, and the issue was litigated in the courts. The legislature at first grappled with this politically hot issue, then abstained from passing or even considering open records bills until the Kansas Supreme Court ruled in 1982 that the abortion records must be provided under the old law. State, ex rel. Stephen v. Harder, 230 Kan. 573, 641 P.2d 366 (1982). The KORA was passed the next year.

The overriding aim was to ensure that all records, regardless of character would be open unless specifically closed. The law contains a strong statement of public policy:

"It is declared to be the public policy of this State that public records shall be open for inspection by any person unless otherwise provided by this act, and this act shall be liberally construed and applied to promote such policy."

K.S.A 45-216(a). Cypress Media v. City of Overland Park, 268 Kan. 407.

Virtually every exception contained in the law, K.S.A. 45-221, was raised by special interest groups or by the Kansas League of Municipalities. The KORA has been amended a number of times to add exceptions, definitions and clarifications.

Since 1993, many new exceptions have been added to the list in K.S.A. 45-221(a), bringing the current total to 49. The Kansas Supreme Court has made it clear that the courts, not the agencies, interpret and enforce the law. The Kansas Attorney General has continued to interpret the law administratively in numerous opinions, and subject to one exception, has agreed to continue including the identities of victims of crimes in portions of the Standard Offense Reports open to public inspection. See Op.Atty.Gen. 92-149 (1992) (identity of victim of sexual assault may be withheld to prevent an unwarranted invasion of personal privacy).

The history and purposes of the KORA has been exhaustively analyzed by Ted P. Frederickson in Letting the Sunshine In: An Analysis of the 1984 Kansas Open Records Act, 33 U. Kan. L. Rev. 205.

The 2000 Legislature made important changes to the law by sun-setting all of the exceptions by July 1, 2015, unless they are individually re-enacted under state policy guidelines newly set out in the statute. These standards require exceptions to be created or maintained only if:

1. The record is of a sensitive or personal nature concerning individuals;

2. It is necessary for effective and efficient administration of a governmental program; or

3. It affects confidential information.

The law also established local public information officers and enhanced enforcement procedures. The 2005 legislature postponed the sunset provisions until 2010.

Open Meetings. The first open meetings law in Kansas was enacted in 1972 and amended in 1975. Only minor amendments have occurred since then. It is founded on the basic principle that the people have a right to know the public business, and that public knowledge and information is essential to the effective functioning of the democratic process. Tacha, The Kansas Open Meeting Act; Sunshine on the Sunflower State?, 25 U. Kan. L. Rev. 169, 170. The statute contains a strong statement of legislative purpose in K.S.A. 75-4317:

"In recognition of the fact that a representative government is dependent upon an informed electorate, it is declared to be the policy of this state that meetings for the conduct of governmental affairs and the transaction of governmental business be open to the public."

Interpretation of the statute has rested largely with the Kansas Attorney General, who has, in numerous opinions, interpreted the statute liberally to effect its purpose. The Kansas Attorney General has consistently interpreted the law to require openness, and has interpreted the executive session provisions narrowly.

However, court interpretations of the statute have not been so liberal. While the Kansas Supreme Court has enforced the Act in obvious violations, it has tended to side with the governmental agencies in close cases. For example, the court has been moving even further away from the liberal interpretation of the Act in finding that a management company leasing from the county hospital board and running the hospital is not subject to the KOMA. Memorial Hospital Association Inc. v. Knutsen, 239 Kan. 663, 722 P.2d 1093 (1986). And, in State v. Sedgwick County Commissioners, 244 Kan. 536, 770 P.2d 455 (1989), the court held a public body may change its own quorum requirements to avoid the KOMA.

The courts have held that executive sessions may cover non-exempt matters if segregation is impractical, and that a consensus may be reached in executive session as long as binding action is taken in open session. State v. USD 305, 13 Kan. App. 2d 117, 764 P.2d 459 (1988); O'Hair v. USD 300, 15 Kan. App. 2d 52, 805 P.2d 40 (1990).

Because there are very few binding Supreme Court decisions interpreting the law, the KOMA is still interpreted and enforced largely by the Attorney General and the Kansas district courts, at the trial level. Both the Attorney General and the district attorneys have made effective use of consent decrees to bring agencies covered by the Act into compliance.