Kansas

Open Government Guide

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Author

Maxwell E. Kautsch
810 Pennsylvania St., #207
Lawrence, KS  66044
(785) 840-0077
maxk@kautschlaw.com

Last updated January 19, 2023

Special thanks to the former co-author of this chapter, Michael W. Merriam, who passed away in 2019.

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Foreword

Open Records. Kansas law on open records and open meetings is statutory. The right to access records developed in the common law and was then codified; it is not of constitutional genesis. Stephens v. Van Arsdale, 227 Kan. 676, 686, 608 P.2d 972, 981 (1980) citing Nixon v. Warner Commc'ns, Inc., 435 U.S. 589, 98 S. Ct. 1306, 55 L. Ed. 2d 570 (1978). The Kansas Open Records Act (“KORA”), contained in K.S.A. 45-215, et seq., was enacted in 1984; the Kansas Open Meetings Act (KOMA), contained in K.S.A. 75-4317, et seq., was passed in 1972. The statutes are unrelated and do not overlap but are to be construed together. A few dozen reported decisions construing the acts exist, and there is a large volume of Attorneys General Opinions opining on both of them.

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 records from all Kansas statutes. Accordingly, specific provisions in other laws still control some open records exemptions. A study by the Revisor of Statutes located over 350 statutes that close specific types of records from public view.

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. See Stephens v. Van Arsdale, 227 Kan. 676, 608 P.2d 972 (1980).

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

The principal reason for delay was the divisive abortion records issue. Right to Life in Kansas, Inc. brought an action to access Medicaid records kept by the Department of Social and Rehabilitative Services identifying doctors who performed abortions. The legislature initially 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. Stephan v. Harder, 230 Kan. 573, 641 P.2d 366 (1982). The KORA was passed the next year.

The overarching 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, 997 P.2d 681, 28 Media L. Rep. 1617 (2000).

Generally, “[a]ll public records shall be open for inspection by any person, except as otherwise provided by this act.”  K.S.A. 45-218(a).  Whether a record is available upon request often depends on whether and to what extent the public agency to whom the request is directed asserts any of the numerous exemptions set forth in the law that provide an agency “shall not be required to disclose” certain records.  K.S.A. 45-221(a).

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 55. 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 Kan. Att’y Gen. Op. 1992-149 (identity of victim of sexual assault may be withheld to prevent an unwarranted invasion of personal privacy).  Administrative interpretation of KORA is given consideration and effect, but final construction of KORA rests with courts. Dept. of Social and Rehab. Servs. v. Pub. Emp. Relations Bd. of Kansas Dep’t. of Human Res., 249 Kan. 163, 815 P.2d 66 (1991).

Consistent with the policy of openness, the burden of proving that an item is exempt from disclosure under KORA is on the agency or the public entity opposing disclosure. K.S.A. 45-222(c); see also Telegram Publ’g. Co., Inc. v. Kansas Dep’t. of Transp., 275 Kan. 779, 69 P.3d 578 (2003); Wichita Eagle and Beacon Pub. Co., Inc. v. Simmons, 50 P.3d 66, 274 Kan. 194 (2002). The exception to this rule is if the plaintiff is seeking criminal investigation records; under such circumstances, the Kansas Supreme Court ruled in 1987, in a ruling that has never been seriously scrutinized by any appellate court, that the plaintiff is required to prove that disclosure of the records is in the public interest.  Harris Enterprises, Inc., v. Moore, 241 Kan. 59 (1987); see also Seck v. Overland Park, et al., 29 Kan. App. 2d 256 (2000).  The KORA does not allow a public agency to refuse to produce records because such records are available from another or a more “appropriate” source. K.S.A. 45-215 et seq. Wichita Eagle and Beacon Publ’g. Co., Inc. v. Simmons, 50 P.3d 66, 274 Kan. 194 (2002).

The KORA was passed by the legislature to ensure public confidence in government by increasing the public’s access to government records and government decision-making processes. K.S.A. 45-215 et seq.; Data Tree, LLC v. Meek, 109 P.3d 1226, 279 Kan. 445 (2005). Whether the district court correctly applied the KORA and its particular exceptions to disclosure was a question of law involving interpretation of statute. K.S.A. 45-215 et seq.; Data Tree, 109 P.3d 1226, 279 Kan. 445.

The history and purposes of the KORA has been 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.  An update of sorts was published in 2003, written by former Assistant Attorney General Theresa Marcel Nuckolls.  See Theresa Marcel Nuckolls, Kansas Sunshine Law; How Bright Does it Shine Now?, 72-MAY J. Kan. B.A. 28 (2003).

Effective July 1, 2015, the Kansas Legislature enacted HB 2256 which amended certain enforcement provisions to allow the Attorney General to determine that a public agency has violated KORA or KOMA.  These provisions are set forth in K.S.A. 45-251, 45-252, and 45-253.

Effective July 1, 2016, the Kansas Legislature enacted SB 361, which expanded the definition of a “public record” beyond such record that is simply in the possession of a public agency to mean:

“[A]ny recorded information, regardless of form, characteristics or location, which is made, maintained or kept by or is in the possession of any officer or employee of a public agency pursuant to the officer's or employee's official duties and which is related to the functions, activities, programs or operations of any public agency.”

According to Attorney General Derrick Schmidt in his legislative testimony related to the bill, the primary purpose of the new definition is to “apply it to otherwise public records on the private email accounts of state employees.”  The new definition appears in K.S.A. 45-217(g).

Open Meetings. The first open meetings law in Kansas was enacted in 1972 and amended in 1975. Only minor amendments have occurred since then, although the law pertaining to how a public body may recess into executive session has recently been clarified.  It is founded on the basic principle that the people have a right to know public business and that public knowledge and information is essential to the effective functioning of the democratic process. Deanell 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 government 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 Hosp. Ass’n, Inc. v. Knutsen, 239 Kan. 663, 722 P.2d 1093 (1986). Additionally, in State v. Sedgwick County Comm’rs, 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. Bd. of Educ. 305, 13 Kan. App. 2d 117, 764 P.2d 459 (1988); O'Hair v. Bd. of Educ. Unified Sch. Dist. No. 300, Comanche Cty., 15 Kan. App. 2d 52, 805 P.2d 40 (1990).

Because there are very few binding Kansas 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.

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Open Records

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I. Statute

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A. Who can request records?

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1. Status of requester

"Any person" may request records. K.S.A. 45-218.

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2. Purpose of request

Public inspection refers to the right of the public to inspect governmental records when there is a laudable object to accomplish or a real and actual interest in obtaining the information. State, Dep’t. of Social and Rehab. Servs. v. Pub. Emp. Relations Bd., 815 P.2d 66, 72, 249 Kan. 163, 170 (1991).

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3. Use of records

A requester may not use lists of names or addresses obtained pursuant to KORA for purposes of selling or offering for sale property or services. K.S.A. 45-220(c)(2)(A) and (B).  The statute is violated only if the requestor intends to use the names and addresses in the records to contact those persons and solicit a sale.  Kan. Att’y Gen. Op. 1998-51.  Ministers or churches may use lists from public records to provide information about area churches; churches are generally not engaged in commercial business. Kan. Att’y Gen. Op. 2000-35. A requester may not sell, give or otherwise make available to any person such information for purposes of allowing that person to use the list in the same manner. In 2003 the legislature removed the criminal penalty contained within 21-3914 and replaced it with the current civil penalty. Kan. Att’y Gen. Op. 2009-18.

In the context of a request for utility billing records, the Attorney General found that a “request for records which does not fall under an exclusion listed in KS.A. 45-221 (a) cannot be denied for the reason that the requester plans to contact those listed for the purpose of purchasing property or services.”  Kan. Att’y Gen. Op. 1996-68.  Likewise, a “requester does not violate the statutory prohibition on receiving lists of names from public records when that requester obtains from register of deeds' records names of persons who have sold property pursuant to a contract for deed, and the requester receives such records for the purpose of contacting the persons therein named to offer to purchase their rights to receive payments under the contract for deed, rather than to sell property or services to such persons.”  Kan. Att’y Gen. Op. 1998-55.

In 1986, the Attorney General found that “[u]sing information from the tax rolls to produce land ‘ownership maps’ is not prohibited” because “names and addresses taken from public records are not used to solicit those persons to purchase property or services; rather, they are used for information purposes to determine land ownership and location.”  Kan. Att’y Gen. Op. 86-39.  Similar circumstances led to the same outcome in 1989.  See Kan. Att’y Gen. Op. 89-47.

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4. Can an individual request records on behalf of a third party or organization?

The law does not prevent an individual from requesting records on behalf of a third party or organization.

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B. Whose records are and are not subject to the Act

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1. Executive branch

The Kansas executive branch offices (Governor, Lieutenant Governor, Secretary of State, Attorney General, State Treasurer and Insurance Commissioner) are subject to KORA under the definition of “public agency” set forth in K.S.A. 45-217(f) because they receive and expend taxpayer dollars.  There, “public agency" is defined to be “the state . . . or any office, agency or instrumentality thereof, . . . receiving or expending and supported in whole or in part by the public funds appropriated by the state . . .”

However, records “which are made, maintained or kept by an individual who is a member of . . . the governing body of any political or taxing subdivision of the state” are not public records under the KORA. K.S.A. 45-217(g)(3)(B).  This provision is intended to “exclude records kept by individual members but not records of the governing bodies they serve.  It excuses individual members of such governing bodies from the burden of producing records that they maintain personally in their performance of official duties, but the records of the governing bodies they serve are still considered public records and thus must be made available.  The person seeking the records of the governing body must get them from the central office rather than from the individual.”  Ted Frederickson, Letting the Sunshine In, 33 Kan. L. Rev. 205, 221 (Winter 1985).

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2. Legislative bodies

Legislative bodies are subject to KORA under the definition of public agencies set forth in K.S.A. 45-245(f)(1), but records “which are made, maintained or kept by an individual who is a member of the legislature . . . of any political or taxing subdivision of the state” are not public records under the KORA K.S.A. 45-217(g)(3)(B).  This is intended to “exclude records kept by individual members but not records of the governing bodies they serve.  It excuses individual members of such governing bodies from the burden of producing records that they maintain personally in their performance of official duties, but the records of the governing bodies they serve are still considered public records and thus must be made available.  The person seeking the records of the governing body must get them from the central office rather than from the individual.”  Ted Frederickson, Letting the Sunshine In, 33 Kan. L. Rev. 205, 221 (Winter 1985).

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3. Courts

Courts are subject to KORA, but judges are not. K.S.A. 45-217(f)(2)(B).  “‘Public agency’ shall not include . . . any municipal judge, judge of the district court, judge of the court of appeals or justice of the supreme court.”  Moreover, “[j]udges' telephone records do not become public records merely because the telephone system is maintained by another branch of government.”  Kan. Att’y Gen. Op. 96-77.

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4. Nongovernmental bodies

KORA includes any entity receiving or expending and supported in whole or part by public funds.  K.S.A. 45-217(f)(1).  As a result, publicly funded organizations providing traditionally public functions are generally subject to KORA, even if such organizations are not government agencies.

In 2018, the Kansas Supreme Court ruled that a not-for-profit county hospital established under K.S.A. 19-4601 et seq. that received public funds was a “instrumentality” as defined by KORA and thus subject to the county’s request for, among other items, records containing information about the hospital’s budget.  State v. Great Plains of Kiowa County, Inc., Opinion No. 115932, HN. 2 (Kan. 2018).  The Court found that a significant goal of the hospital was to provide "quality non-profit health-care services to residents of the are served by the hospital;" as a result, the hospital “became the instrumentality for fulfilling the will of the voters of Kiowa County that they should have access to hospital facilities.”  Id., p. 7 (internal quotations omitted).

Likewise, city hospitals organized under K.S.A. 14-601c are subject to KORA.  In Kansas Attorney General Opinion 1988-61, one such hospital was deemed subject to KORA because it was an “instrumentality” of a public agency.  There, the Attorney General found:

“[H]ospitals organized under these laws must be established by a nonprofit corporation or a charitable or religious organization. K.S.A. 14-601c. It appears that such hospitals are for the "common good of all" and are "without the element of special corporate benefit or pecuniary profit."  Therefore, under the Mallory analysis, it is our opinion that the Arkansas City Memorial Hospital is an instrumentality of a political subdivision of the state subject to the provisions of the open records law.”

Kan. Att’y Gen. Op. 1988-61.

A county not-for profit mental health services provider organized under K.S.A. 19-4001 is also covered under KORA because it “receives, expends and is supported by various sources of public funds.”  Kan. Att’y Gen. Op. 94-111.  There, the Attorney General found that such an entity “is not simply selling goods to the county, but it is organized, operated, and financed according to the provisions of the act, in order to provide governmental services to the residents. It is illogical to say that the county may escape public scrutiny merely by contracting the outside firm to provide the same services which could be offered by the county itself.” Id.

KORA also states that “each not-for-profit entity which receives public funds in an aggregated amount of $350 or more per year, shall, upon request, make available to any requester a copy of documentation of the receipt and expenditure of such public funds received by such not-for-profit entity.”  K.S.A. 45-240(a).

However, the Attorney General found that a not-for-profit organization that “provide[s] a small group living facility for 8-12 persons with mental retardation or developmental disabilities” was not a public agency, and not subject to KORA.  Kan. Att’y Gen. Op. 2004-34.  “The majority of funds received by this corporation appear to be paid by or on behalf of clients who are placed in this facility and who are receiving services. Moreover, it was not created by a governmental entity, nor is it controlled by a governmental entity. It is engaging in a business that may be provided by the private sector as well as by a governmental entity. Thus, it is our opinion that Sheltered Living, Inc. is not subject to the KORA.”  Id.

The Attorney General found in 1997 that the NCAA is not a “public agency,” and thus not subject to KORA, because “the member universities received specific services and benefits for all funds paid.”  Kan. Att’y Gen. Op. 97-64.

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5. Multi-state or regional bodies

Multistate or regional bodies are not addressed specifically, but the presumption is that if the group is partially or wholly funded by public money, then it is subject to KORA. K.S.A. 45-217(e)(1).

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6. Advisory boards and commissions, quasi-governmental entities

These are subject to the act if publicly funded. Kan. Att’y Gen. Op. 1986-48.

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7. Others

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C. What records are and are not subject to the act?

Records included are those made, maintained or kept by or in possession of any public agency or any “officer or employee of a public agency pursuant to the officer's or employee's official duties and which is related to the functions, activities, programs or operations of any public agency.”  K.S.A. 45-217(g)(1)(A) and (B). Exemptions are outlined specifically in K.S.A. 45-221(a).

By statutory decree, it is declared to be the public policy of the state that public records shall be open for inspection by any person unless otherwise provided by the Kansas Open Records Act (KORA), and KORA shall be liberally construed and applied to promote such policy.  K.S.A. 45-216(a).  Courts are required to liberally construe and apply KORA to promote a policy of open inspection of public records. Wichita Eagle and Beacon Publ’g. Co., Inc. v. Simmons, 50 P.3d 66, 274 Kan. 194 (2002). It is state public policy that public records shall be open for inspection by any person, and KORA shall be liberally construed and applied to promote such policy. Cypress Media, Inc. v. City of Overland Park, 268 Kan. 407, 997 P.2d 681, 28 Media L. Rep. 1617 (2000).  “The function of liberal construction is called into use where there is ambiguity in the language of the statute, or, in other words, where there are one or more interpretations which may fairly be made.”  Salina Journal, et al., v. Brownback, et al., 54 Kan. App. 2d 1 (2017).

The act does not cover records owned by a private person or entity which are not related in functions, activities, programs or operations funded by public money or records made, maintained or kept by members of the legislature or other governing body. K.S.A. 45-217(g)(3)(A) and (B). However, under such circumstances, "private person" shall not include an officer or employee of a public agency who is acting pursuant to the officer's or employee's official duties.  K.S.A. 45-217(g)(3)(A). It also does not include employer records relating to the employer's individually identifiable contributions made on behalf of employees for workers' compensation, social security, unemployment insurance or retirement. K.S.A. 45-217(g)(3)(C).  However, employer records relating to lump-sum payments for contributions as described in K.S.A. 45-217(g) are disclosable.  K.S.A. 45-217(g)(3)(A). A public agency is not required to create a record or to prepare a report or conduct an investigation upon a request for information. Kan. Att’y Gen. Op. 1993-126.

The act does not cover records which are made, maintained or kept by an individual who is a member of the legislature or of the governing body of any political or taxing subdivision of the state.  K.S.A. 45-217(g)(3)(B).  This is intended to “exclude records kept by individual members but not records of the governing bodies they serve.  It excuses individual members of such governing bodies from the burden of producing records that they maintain personally in their performance of official duties, but the records  of the governing bodies they serve are still considered public records and thus must be made available.  The person seeking the records of the governing body must get them from the central office rather than from the individual.”  Ted Frederickson, Letting the Sunshine In, 33 Kan. L. Rev. 205, 221 (Winter 1985).

The Kansas Open Records Act does not require provision of records based upon a standing request or prospective request for documents not yet in existence.  Kan. Att’y Gen. Op. 98-51.

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1. What kinds of records are covered?

In Kansas, “public record” means “any recorded information, regardless of form, characteristics or location, which is made, maintained or kept by or is in the possession of” either a public agency or “any officer or employee of a public agency pursuant to the officer's or employee's official duties and which is related to the functions, activities, programs or operations of any public agency.”  K.S.A. 45-217(g)(1)(A) and (B).  This includes settlement agreements on cases of the Kansas Public Employees Retirement System (KPERS) and the investments of money in the fund as public records.  K.S.A. 45-217(g)(2).  Settlement agreements resolving litigation involving public agencies “meet[] the definition of a public record, and [are] subject to the KORA. There is no exemption provision allowing the settlement agreement to be confidential under the KORA.” Kan. Att’y Gen. Op. 1993-55.  Moreover, “a contractual term attempting to close the conditions of the settlement is void as against public policy.”  Id.; see also Kan. Att’y Gen. Op. 91-116.  However, KPERS is not obligated to disclose a member's name and address. Kan. Att’y Gen. Op. 1994-57.

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2. What physical form of records are covered

“Public record” means any recorded information regardless of form or characteristics. K.S.A. 45-217 (g)(1).

Emails: The definition of open records was amended in 2016 to clarify that communications such as private emails of “any officer or employee of a public agency” that are made “pursuant to the officer's or employee's official duties and which is related to the functions, activities, programs or operations of any public agency” are subject to KORA.  This amendment to the definition of public records was largely in response to controversy related to an open records request for emails sent by the governor’s budget director and a resulting attorney general opinion, Kan. Att’y Gen. Op. 2015-10.  Attorney General Derek Schmidt was instrumental in drafting the legislature’s 2016 amendment which, according to the Attorney General’s legislative testimony, applies KORA to “the private email accounts of state employees” if public employees use those accounts “to do their public jobs.”

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3. Are certain records available for inspection but not copying?

Agencies are not required to provide copies of radio, recording tapes, discs, video tapes or film, pictures, slides, graphics, illustrations, or similar audio or visual items or devices unless they are played or shown at a public meeting. K.S.A. 45-219(a).

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4. Telephone call logs

“Public record” means any recorded information regardless of form or characteristics. K.S.A. 45-217(g)(1).

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5. Electronic records (e.g., databases, metadata)

“Public record” means any recorded information regardless of form or characteristics. K.S.A. 45-217(g)(1).

Under the previous open records law, computer data is a “record.” State ex rel. Stephan v. Harder, 230 Kan. 573, 582 (1982).  Attorney general opinions interpreting KORA concur.  See Kan. Att’y Gen. Ops. 94-104; 89-106; 88-152; and 87-137.

In 2023, the Kansas Supreme Court ruled that KORA’s plain language requires agencies “to provide someone with requested electronic copies of public electronic records.” Roe v. Phillips Cnty. Hosp., No. 122,810, 2023 WL 117359, at *2 (Kan. Jan. 6, 2023). “The only accurate reproduction of an electronic file is a copy of the electronic file, which can easily be provided by, for example, email or thumb drive.” Id. at *5. The court found this included metadata such as embedded formulas within a spreadsheet. Id.

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a. Can the requester choose a format for receiving records?

An agency “must provide copies of these records in the format it stores them.” Roe v. Phillips Cnty. Hosp., No. 122,810, 2023 WL 117359, at *4 (Kan. Jan. 6, 2023). “KORA sets the absolute floor for an agency’s obligations: if it maintains ‘recorded information’ in a given format, a ‘copy’ must mirror that format,” the Kansas Supreme Court ruled in a case regarding an agency’s obligation to provide a copy of a spreadsheet in electronic  format. Id. at *4.

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b. Can the requester obtain a customized search of computer databases to fit particular needs

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c. Does the existence of information in electronic format affect its openness?

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d. Online dissemination

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6. Email

In 2015, Attorney General Derrick Schmidt found that “[s]tate employees who utilize a private device and do not utilize public resources to send an email from his or her private email account (private email) are not a ‘public agency’ as defined by the Kansas Open Records Act (KORA) in K.S.A. 2014 Supp. 45-217(f). Accordingly, their private emails are not records subject to the provisions of the KORA.”  Kan. Att’y Gen. Op. 2015-10.  But in the following legislative session, Attorney General Schmidt led an effort to amend the definition of “public record” so that email correspondence pertaining to official duties would be subject to KORA.  That definition is currently found in K.S.A. 45-217(g)(1)(B).  The amendment was intended to apply KORA “to otherwise public records on the private email accounts of state employees.”  Testimony in Support of Senate Bill 361 Presented to the Senate Judiciary Committee By Kansas Attorney General Derek Schmidt (Feb. 2, 2016).

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7. Text messages and other electronic messages

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8. Social media posts

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9. Computer 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 which the agency maintains on computer facilities, and (2) the form in which this information can be made available using the existing computer programs. K.S.A. 45-221(a)(16).

A public agency may establish a proprietary computerized system that allows access to public records on a paid subscription basis, but this does not alter the nature of the public record or applicability of KORA; public records accessed through such a system must be made available upon request at a fee not exceeding the actual cost of production.  Kan. Att’y Gen. Op. 95-64.  Also, a public agency may enter into a contract with a private company to provide computer access to county records, but such contracts do not relieve a county of KORA obligations.  Kan. Att’y Gen. Op. 2009-14.

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10. Can a requester ask for the creation or compilation of a new record?

A public agency is “not required to prepare a report or conduct an investigation in response to a request for information.”  Kan. Att’y Gen. Op. 93-126.

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D. Fee provisions

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1. Types of assessable fees (e.g., for search, review, duplication) and levels or limitations on fees

Fees for copies of records may not exceed the actual cost of furnishing copies, including cost of staff time. K.S.A. 45-219(c)(1).

$.25/page is reasonable for copies of public records. K.S.A. 45-219(c)(5). Although a public agency may establish subscription fees and online access fees for computerized public records, these records must also be available for a fee not exceeding the actual cost of production. Kan. Att’y Gen. Op. 1995-64.

Any person requesting records may appeal the reasonableness of the fees charged for providing access to or furnishing copies of such records to the Secretary of Administration whose decision shall be final. K.S.A. 45-219(c)(5).

In February of 2020, the Attorney General’s Office found a city violated KORA when it assessed fees in excess of $3,000 to respond to a request; the invoice featured attorney fees charged to the requester at $225.00 per hour.  In bringing the only enforcement action that office brought during all of 2020, the Attorney General found: “While the city may recover its actual costs in responding to a KORA request, those costs must still be reasonable. An hourly rate of $225.00 per hour for attorney time is per se unreasonable. Outside counsel may charge a governmental entity for its services. However, based on the public policy and purpose of the KORA, it is unreasonable for a public agency to pass those costs onto a requester without a significant reduction in the hourly fee rate.”  2020-0G-0001, City of Frontenac; Kansas Open Records Act; Unreasonable Fees, pp. 3-4.

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2. Particular fee specifications or provisions

Fees shall include the cost of staff time required to make the information available. K.S.A. 45-219(c)(1). Presumably this means search time is included.

The Kansas Department of Administration has issued a memo to attempt to standardize fees for state agencies. Record requests that can be provided with less than one hour of staff time or fewer than 25 pages will be provided at no charge.  For requests that exceed that amount, the following rates shall apply: copies at $0.25 per page; mailing at $0.50 for first 5 pages, $0.25 for additional 5-page increments; fax at $0.65 per 10-page fax. Kansas Department of Administration, Policy and Procedure for Obtaining Copies of or Access to Public Records Pursuant to the Kansas Open Records Act, https://ag.ks.gov/docs/default-source/publications/kansas-attorney-general%27s-record-request-policy.pdf?sfvrsn=790b1a89_12. Staff time will be charged at the rate of pay for each person(s) whose time is used in order to assist and/or respond to a specific request. This may include the time spent to access records maintained on computers, review records to determine whether closure exceptions apply, and/or redact exempted information. Attorney time will be charged at $60 per hour. Clerical time will be charged at $18 per hour. Information Technology services will be charged at $38 per hour. Id.

Fees for electronic records shall include only the use of any computer services including staff time. K.S.A. 45-219(c)(2). There is no specific cost provision for microfiche or non-print media.

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3. Provisions for fee waivers

A public agency "may charge" fees for providing access to or furnishing copies of public records. K.S.A. 45-218(f). While the FOIA (the federal government’s public records law) provides for a poverty exception, the KORA does not have such an exception. A data processor under contract with a public agency is not required to pay any charges pursuant to KORA when the sole purpose of such data processor is to develop new programs for easier access. Kan. Att’y Gen. Op. 1993-132.

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4. Requirements or prohibitions regarding advance payment

A public agency "may" require advance payment. K.S.A. 45-218(f); K.S.A. 45-219(a). See State ex rel. Stephen v. Harder, 641 P.2d 366, 230 Kan. 573 (1982).

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5. Have agencies imposed prohibitive fees to discourage requesters?

A charge of $.25 page is deemed reasonable. Any person requesting records may appeal the reasonableness of the fees charge for providing access to or furnishing copies of such records to the Secretary of Administration whose decision shall be final. K.S.A. 45-219(c)(5).  Although there are no reported decisions or Attorney General Opinions, there have been numerous examples of excessive charges which are thought to be discouragement.

A city may charge reasonable fees for providing access to or furnishing copies of public records pursuant to K.S.A. 45-219.  Kan. Att’y Gen. Op. 1993-126.  A reasonable charge for copies is 20 cents per page.  Kan. Att’y Gen. Op. 87-4.  On page 8 of the Attorney General’s publication titled “KORA Guidelines” dated July 1, 2015, that office noted that “[o]ther jurisdictions have generally not upheld copying costs in excess of $0.25 per page.”

When the city of Frontenac attempted to impose fees in excess of $3,000 based largely on attorney fees at $225 per hour, the Kansas Attorney General’s Office found that “An hourly rate of $225.00 per hour for attorney time is per se unreasonable.”  2020-0G-0001, City of Frontenac; Kansas Open Records Act; Unreasonable Fees, p. 4.

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6. Fees for electronic records

Fees for electronic records shall include only the use of any computer services including staff time. K.S.A. 45-219(c)(2). There is no specific cost provision for microfiche or non-print media.

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E. Who enforces the Act?

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1. Attorney General's role

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2. Availability of an ombudsman

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3. Commission or agency enforcement

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F. Are there sanctions for noncompliance?

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G. Record-holder obligations

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1. Search obligations

“Each request for access to a public record shall be acted upon as soon as possible, but not later than the end of the third business day following the date that the request is received. If access to the public record is not granted immediately, the custodian shall give a detailed explanation of the cause for further delay and the place and earliest time and date that the record will be available for inspection. If the request for access is denied, the custodian shall provide, upon request, a written statement of the grounds for denial. Such statement shall cite the specific provision of law under which access is denied and shall be furnished to the requester not later than the end of the third business day following the date that the request for the statement is received.”

K.S.A. 45-218(d).

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2. Proactive disclosure requirements

Agencies only have to produce records upon request.  The only affirmative requirements are related to procedure rather than disclosure; e.g., the governing body of every public agency in Kansas which maintains public records "shall designate a local freedom of information officer" under K.S.A. 45-226; "An official custodian shall prominently display or distribute or otherwise make available to the public a brochure in the form prescribed by the local freedom of information officer that contains basic information about the rights of a requestor" under K.S.A. 45-227.  Also, Under the Kansas Open Meetings Act, an agency is required to furnish a meeting agenda at no charge if such an agenda exists, but again only "to any person requesting" it. K.S.A. 75-4318(d).

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3. Records retention requirements

“Nothing in this act shall be construed to require the retention of a public record nor to authorize the discard of a public record." K.S.A. 45-216(b). State agencies and counties are subject to the Preservation Act and are prohibited from destroying public records except as permitted by minimum records retention schedules as set forth by the State Records Board. K.S.A. 45-403; 45-404(b). Unless some specific law applies to a specific record, all other public agencies may dispose of their records as they deem advisable.

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4. Provisions for broad, vague, or burdensome requests

“The custodian may refuse to provide access to a public record, or to permit inspection, if a request places an unreasonable burden in producing public records or if the custodian has reason to believe that repeated requests are intended to disrupt other essential functions of the public agency. However, refusal under this subsection must be sustained by preponderance of the evidence.”

K.S.A. 45-218(e).

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II. Exemptions and other legal limitations

Kansas has a laundry list exemption statute. K.S.A. 45-221.

Exemptions are discretionary, except for one, and are not patterned after the federal Freedom of Information Act.

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A. Exemptions in the open records statute

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1. Character of exemptions

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2. Discussion of each exemption

A list of 55 exceptions to mandatory disclosure is found in K.S.A. 45-221(a)(1) through (55).

1. Records specifically prohibited or restricted from disclosure by federal law, state statute, or rule of Kansas Supreme Court. K.S.A. 45-221(a)(1). Includes tax return information. Kan. Att’y Gen. Op. 1990-20; K.S.A. 79-3614. This is the only exception that is mandatory. All other exceptions are discretionary with the public agency, but in practice, public agencies treat all exceptions as absolute.
2. Records privileged under rules of evidence. K.S.A. 45-221(a)(2).
3. Medical, psychiatric, psychological or alcoholism or drug dependency treatment records. K.S.A. 45-221(a)(3); Kan. Att’y Gen. Op. 1994-81.
4. Personnel records, performance ratings or individually identifiable records pertaining to employment, but certain information such as names, positions and salaries of officers and employees of public agencies are not exempt. K.S.A. 45-221(a)(4), Kan. Att’y Gen. Op. 1987-109. 1991-50, 1992-132, 1989-50, 1994-121. Records pertaining to an internal investigation of an agency’s employee, disclosure of which would neither interfere with a prospective administrative adjudication or civil litigation nor disclose the identity of a confidential informant and thus cannot be withheld under K.S.A. 45-221(a)(11), may nevertheless still be discretionarily closed if they fit the definition of a personnel record. Kan. Att’y Gen. Op. 91-127.
5. Information pertaining to the identity of an undercover agent or informant. K.S.A. 45-221(a)(5).

6. Letters of reference or recommendation that speak to the character or qualifications of an identifiable individual. K.S.A. 45-221(a)(6).

7. Library, archive and museum materials contributed by private persons. K.S.A. 45-221(a)(7).

8. Information concerning an individual who lawfully makes a donation to a public agency. K.S.A. 45-221(a)(8).

9. Testing and examination materials before the test is given or individual scores, other than records which show only passage or failure. K.S.A. 45-221(a)(9).
10. Criminal investigation records. A district court may order disclosure in an action brought under K.S.A. 45-222(civil remedies to enforce KORA) if the court finds that disclosure: (1) is in the public interest; (2) would not interfere with any prospective law enforcement action; (3) would not reveal the identity of any confidential source or undercover agent; (4) would not reveal confidential investigation techniques or procedures not known to the general public; (5) would not endanger the life or physical safety of any person; and (6) would not reveal the name, address, phone number or any other information which specifically and individually identifies the victim of any sexual offense in Article 35 of Chapter 21 of the Kansas Statutes Annotated, and amendments thereto. K.S.A. 45-221(a)(10). This is the only judicial protocol for obtaining records among the 55 exceptions.

The Kansas Supreme Court has found that the term "'public interest' means more than 'public curiosity.'" Harris Enters. Inc. v. Moore, 241 Kan. 59, 66, 734 P.2d 1083 (1987). Public interest existed in disclosure of murder investigation files where inconsistent statements were reported and definite disagreements arose between various law enforcement agencies. See Harris Enters. Inc. v. Moore, 241 Kan. 59, 734 P.2d 1083 (1987).   In 2006, in a matter involving KORA but not criminal investigation records, the Attorney General found that “public interest may exist if release of the information would ‘shed any light on the conduct of any Government agency or official.’”  Kan. Att’y Gen. Op. 2006-8 (citing U.S. Dep’t. of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 763 (1989)).  “If release would shed no such light, the agency may withhold the information.  If disclosure would shed light on governmental conduct, courts next try to balance the public interest in its release against the implicated privacy interest.”  Id.

Records compiled in the process of preventing, detecting or investigating violations of criminal law are not subject to mandatory disclosure.  K.S.A. 45-217(c); K.S.A. 45-221(a)(10); see also Kan. Att’y Gen. Op. 1987-25.  The definition of criminal investigation records “does not include police blotter entries, court records, rosters of inmates of jails or other correctional or detention facilities or records pertaining to violations of any traffic law other than vehicular homicide as defined by K.S.A. 21-3405, prior to its repeal, or K.S.A. 2018 Supp. 21-5406, and amendments thereto.”  K.S.A. 45-217(c)(2).  If a police department does not maintain a blotter, it is under a common law duty to disclose basic information about arrests reasonably contemporaneously with the arrest.  Kan. Att’y Gen. Op. 98-38.  A "jail book" listing persons placed in jail and other general information must be open for public inspection. Kan. Att’y Gen. Op. 1987-25.  The amount of time an inmate has spent in custody is an open record.  Kan. Att’y Gen. Op. 2002-29.  The front page of standard offense report must be open for public inspection. Id.; Kan. Att’y Gen. Op. 1998-38 (All information on the front page except for the victim's social security number is presumed to be open, and portions of the front page can only be closed if the victim was the victim of certain sex crimes or under the unusual event that disclosure would constitute a clearly unwarranted invasion of the victim's personal privacy).  Mug shots may be disclosed. Id. A permanent record of all felony offenses reported in a jurisdiction must be open for public inspection. Kan. Att’y Gen. Op. 1979-17. Reports, memoranda, or other internal government documents made by officers in connection with an investigation or prosecution are not open for public inspection. Id. Motor vehicle accident reports must be open for public inspection. Id. Municipal court DUI diversion agreements are public records under KORA and must be disclosed upon request. Kan. Att’y Gen. Op. 1994-7.  Court records of public judicial proceedings, including the sentencing information and guilty or not guilty findings, are part of the court records and are therefore open to the public unless there is other statutory restriction available to close them.  Kan. Att’y Gen. Op. 93-103.  By the same token, records stating charges filed in municipal court and court dates open.  Kan. Att’y Gen. Op. 87-145.

Breath tests in DUI investigations is an example of a criminal investigation record not required to be disclosed.  Kan. Att’y Gen. Op. 87-63.

11. Records of agencies involved in administrative adjudication or civil litigation, K.S.A. 45-221(a)(11), except certain KPERS settlement records. K.S.A. 45-217(f)(1). Investigatory materials become open at the conclusion of the case or once an agency has determined no proceedings will be filed unless another exemption applies. Kan. Att’y Gen. Op. 97-76.
12. Emergency or security information. K.S.A. 45-221(a)(12).
13. Contents of appraisals or engineering relative to the acquisition of property. K.S.A. 45-221(a)(13). But tax assessment records are open. Kan. Att’y Gen. Op. 1991-145.
14. Correspondence between a public agency and a private individual. K.S.A. 45-221(a)(14).
15. Records pertaining to employer-employee negotiation. K.S.A. 45-221(a)(15). But see State, Dep't of Soc. & Rehab. Servs. v. Pub. Emp. Relations Bd., 249 Kan. 163, 815 P.2d 66 (1991).
16. Software programs for electronic data processing and documentation. K.S.A. 45-221(a)(16).
17. Applications, financial statements and other information submitted in connection with applications for student financial assistance. K.S.A. 45-221(a)(17).
18. Plans, designs, drawings or specifications which are the property of a private person. K.S.A. 45-221(a)(18).
19. Well samples, logs or surveys which the state corporation commission requires to be filed. K.S.A. 45-221(a)(19).
20. Notes, preliminary drafts, research data in the process of analysis, unfunded grant proposals, memoranda, recommendations or other records in which opinions are expressed or policies or actions are proposed. K.S.A. 45-221(a)(20).

Draft minutes of a county commission meeting are "preliminary drafts" that would fall within the exception in K.S.A. 45-221(a)(20), and the board of county commissioners is not required to disclose them to the public prior to being formally approved by the board unless the draft minutes are publicly cited or identified either in an open meeting or in an agenda of an open meeting. Kan. Att’y Gen. Op. 2013-05.  See also Kan. Att’y Gen. Op. 90-14.  Mere announcement of a record’s name in an open meeting without discussion of its content does not require disclosure of a record otherwise permissibly closed. Kan. Att’y Gen. Op. 90-92.  A public agency must disclose records reviewed and discussed during an open meeting or where a public body takes binding action on such a record.  Kan. Att’y Gen. Op. 92-132.

21. Records of a public agency having legislative powers pertaining to proposed legislation. K.S.A. 45-221(a)(21).
22. Records of a public agency having legislative powers, which pertain to research prepared for one or more members of such agency. K.S.A. 45-221(a)(22).
23. Library patron and circulation records. K.S.A. 45-221(a)(23).
24. Records which are compiled for census or research purposes. K.S.A. 45-221(a)(24).
25. Records which represent and constitute the work product of an attorney. K.S.A. 45-221(a)(25). Kan. Att’y Gen. Op. 1987-149.
26. Records of a utility or other public service pertaining to individually identifiable residential customers. K.S.A. 45-221(a)(26).
27. Specifications for competitive bidding. K.S.A. 45-221(a)(27).
28. Sealed bids and related documents. K.S.A. 45-221(a)(28).
29. Correctional records pertaining to an identifiable inmate. K.S.A. 45-221(a)(29). Kan. Att’y Gen. Ops. 1984-124, 1982-226.
30. Public records where the public disclosure would constitute a “clearly unwarranted invasion of personal privacy.” K.S.A. 45-221(a)(30). Kan. Att’y Gen. Ops. 1989-50, 1992-149. K.S.A. 45-217(b) defines this phrase to mean “revealing information that would be highly offensive to a reasonable person, including information that may pose a risk to a person or property and is not of legitimate concern to the public.” This amendment was in response to the decision in Data Tree, LLC v. Meek, 109 P.3d 1226, 279 Kan. 445 (2005). The Attorney General has identified several instances when this provision provides a basis to redact information from requested documents: Kan. Att’y Gen. Op. 99-55(independent contractor consulting contract); 98-38 (SSN of victim of sex offense); 92-149 (victim of sex offense); 87-168 (social security number).
31. Public records pertaining to prospective location of a business or industry, where previous public disclosure has not been made. K.S.A. 45-221(a)(31).
32. Engineering and architectural estimates made by or for any public agency relative to public improvements. K.S.A. 45-221(a)(32).
33. Financial information submitted by contractors. K.S.A. 45-221(a)(33).
34. Records of intellectual property rights vested in state institutions. K.S.A. 45-221(a)(34).
35. Peer review, impaired provider, and risk management records of health care providers. K.S.A. 45-221(a)(35).
36. Records revealing the precise location of an archeological site. K.S.A. 45-221(a)(36)

37. Certain railroad records on sale, lease or rehabilitation of property in Kansas given to public agencies. K.S.A. 45-221(a)(37).

38. Risk-based capital reports and capital plans, corrective orders including the working papers and the results of any analysis filed with the commissioner of insurance in accordance with K.S.A. 40-2c20, and amendments thereto. K.S.A. 45-221(a)(38).
39. Memoranda and related materials supporting the annual actuarial opinions submitted pursuant to K.S.A. 40-409(b), and amendments thereto. K.S.A. 45-221(a)(39).
40. Disclosure reports filed with the commissioner of insurance pursuant to K.S.A. 40-2,156(a)and amendments thereto. K.S.A. 45-221(a)(40).
41. All financial analysis ratios and examination synopses concerning insurance companies that are submitted to the commissioner by the national association of insurance commissioners' insurance regulatory information system. K.S.A. 45-221(a)(41).
42. Any records for which disclosure is restricted or prohibited by a tribal-state gaming compact. K.S.A. 45-221(a)(42).
43. Market research and plans, business plans and the terms and conditions of managed care or other third party contracts, developed or entered into by the University of Kansas Medical Center in the management and operation of the university hospital which the chancellor of the University of Kansas or the chancellor's designee determines would give an unfair advantage to competitors of the University of Kansas Medical Center. K.S.A. 45-221(a)(43).
44. Amount of franchise tax paid to the secretary of state by corporations. K.S.A. 44-221(a)(44).
45. Information with a substantial likelihood of revealing security measures of energy, water, communications, sewer and waste infrastructures. K.S.A. 45-221(a)(45).
46. Military discharge documents (DD Form 214) recorded at a Register of Deeds. K.S.A. 45-221(a)(46).
47. Information on location of shelters or safehouses for victims of abuse. K.S.A. 45-221(a)(47).
48. Policy information provided by an insurance carrier listing covered individuals under group-funded workers’ compensation insurance. K.S.A. 45-221(a)(48).
49. An individual’s e-mail, cell phone number, and other contact information given to a public agency for the purpose of public agency notifications which are widely distributed to the public. K.S.A. 45-221-(a)(49).
50. Information that is protected under the Kansas 911 Act, K.S.A. 12-5362 et. seq.. K.S.A. 45-221(a)(50).
51. Records of a public agency on a public website which are searchable and identify personal information of a law enforcement officer when such officer files with the custodian of the record to have the information restricted. This restriction expires after five years, but the officer may make a new request for restriction at any time. K.S.A. 45-221(a)(51).
52. Records of a public agency on a public website which are searchable and identify personal information of a judge or government attorney when such officer of the law files with the custodian of the record to have the information restricted. This restriction expires after five years, but the officer may make a new request for restriction at any time. K.S.A. 45-221(a)(52).
53. Records of a public agency which identify contact information of a person licensed to carry concealed handguns or any person who enrolled in or completed weapons training. K.S.A. 45-221(a)(53).
54. Records of a utility concerning information about cybersecurity threats provided to law enforcement or other federal, state or regional organizations which have responsibility for safeguarding natural resources and channels of communication. K.S.A. 45-221(a)(54).

55.  Records of a public agency containing information or reports by the state bank commissioner in the course of licensing or examining a person engaged in money transmission business. K.S.A. 45-221(a)(55).

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B. Other statutory exclusions

Any other statute which specifically restricts disclosure takes precedence over the KORA. K.S.A. 45-221(a)(1). The Revisor of Statutes has identified over 350 such other statutes. There are no Kansas statutes, case law, or other provisions which provide for the overriding of KORA but there is precedent for further restricting it.

1. The UCC requires the filing office to offer to sell or license to the public on a nonexclusive basis, in bulk, copies of all its filed records, in every medium from time to time. S.A. 84-9-523(g). (The "filing office" is defined in K.S.A. 84-9-501 as either essentially a register of deeds or the secretary of state depending on the filing.)
2. S.A. 9-1712provides for the confidentiality of all information gathered or recorded by the bank commissioner in the investigation or examination on any bank. Kan. Att’y Gen. Op. 1983-112.
3. Previous legislation has been replaced by S.A. 8-1560d, changing which speed violations are public.

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C. Court-derived exclusions, common law prohibitions, recognized privileges against disclosure

A public agency is not required to disclose records the disclosure of which is prohibited or restricted by federal law, state statute, or rule of the Kansas Supreme Court. K.S.A. 45-221(a)(1). Pending litigation does not itself transform Kansas Department of Transportation records into confidential or privileged communications. Kan. Att’y Gen. Op. 1995-12.

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D. Protective orders and government agreements to keep records confidential

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E. Interaction between federal and state law

“Except to the extent disclosure is otherwise required by law, a public agency shall not be required to disclose: Records the disclosure of which is specifically prohibited or restricted by federal law, state statute or rule of the Kansas supreme court or rule of the senate committee on confirmation oversight relating to information submitted to the committee pursuant to K.S.A. 2018 Supp. 75-4315d, and amendments thereto, or the disclosure of which is prohibited or restricted pursuant to specific authorization of federal law, state statute or rule of the Kansas supreme court or rule of the senate committee on confirmation oversight relating to information submitted to the committee pursuant to K.S.A. 2018 Supp. 75-4315d, and amendments thereto, to restrict or prohibit disclosure.”

K.S.A. 45-221(a)(1).

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1. HIPAA

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2. DPPA

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3. FERPA

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4. Other

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F. Segregability requirements

“If a public record contains material which is not subject to disclosure pursuant to this act, the 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. If a public record is not subject to disclosure because it pertains to an identifiable individual, the public agency shall delete the identifying portions of the record and make available to the requester any remaining portions which are subject to disclosure pursuant to this act, unless the request is for a record pertaining to a specific individual or to such a limited group of individuals that the individuals' identities are reasonably ascertainable, the public agency shall not be required to disclose those portions of the record which pertain to such individual or individuals.”

K.S.A. 45-221(d).

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G. Agency obligation to identify basis of redaction or withholding

“If the request for access is denied, the custodian shall provide, upon request, a written statement of the grounds for denial. Such statement shall cite the specific provision of law under which access is denied and shall be furnished to the requester not later than the end of the third business day following the date that the request for the statement is received.”

K.S.A. 45-218(d).

If a criminal investigation record is discretionarily closed by a public agency pursuant to K.S.A. 45-221(a)(10), “the record custodian, upon request, shall provide a written citation to the specific provisions of paragraphs (A) through (F) that necessitate closure of that public record.”  K.S.A. 45-221(a)(10).

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III. Record categories - open or closed

Records defined to be “public records” under K.S.A. 45-217(g) are subject to disclosure unless an agency chooses not to disclose the requested record based on one or more of the exceptions set forth in K.S.A. 45-221.

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A. Autopsy and coroners reports

Coroner’s records are subject to disclosure under KORA.  Burroughs v. Thomas, 937 P.2d 12 (Ct. App. Kan. 1997).

Autopsy reports are open for public inspection unless they have been filed with the clerk of the district court and designated as a criminal investigation record. Kan. Att’y Gen. Op. 1986-05.

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B. Administrative enforcement records (e.g., worker safety and health inspections, or accident investigations)

Fire inspection records are subject to public disclosure. City of Topeka v. Stauffer Commc’ns, Inc., 642 P.2d 120, 122 (Ct. App. Kan. 1982).

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C. Bank records

K.S.A. 9-1712 provides for the confidentiality of all information gathered or recorded by the bank commissioner in the investigation or examination of any bank. Kan. Att’y Gen. Op. 1983-112. Kansas Attorney General Opinion 1978-67 clarifies that only those records derived from examination of a bank pursuant to K.S.A. 9-804 are confidential, while information contained in articles of incorporation and the application for a certificate of authority are open for inspection.

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D. Budgets

No applicable law.

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E. Business records, financial data, trade secrets

Public records pertaining to the prospective location of a business or industry are exempt from disclosure under K.S.A. 45-221(a)(31). Well samples, logs or surveys which the Kansas Corporation Commission requires to be filed are exempt from disclosure under K.S.A. 45-221(a)(19). Market research and plans, business plans and the terms and conditions of managed care or other third party contracts, developed or entered into by the University of Kansas Medical Center are also exempt under K.S.A. 45-221(a)(43).

Disclosure of financial records of public grain elevators applying for licenses is mandated under KORA, Kan. Att’y Gen. Op. 1983-49. A settlement agreement entered into by a city is a public record under KORA and therefore must be disclosed. Kan. Att’y Gen. Op. 1993-55. Tax audit records are public records under KORA, but some information contained in such records may be confidential and disclosure is prohibited by K.S.A. 79-3234. Kan. Att’y Gen. Op. 1995-06.

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F. Contracts, proposals and bids

The following are exempt from disclosure: plans, designs, drawings or specifications which are the property of a private person (K.S.A. 45-221(a)(18)); specifications for competitive bidding (K.S.A. 45-221(a)(27)); sealed bids and related documents (K.S.A. 45-221(a)(28)); the bidder's list of contractors (K.S.A. 45-221(a)(32)); and engineering and architectural estimates made by or for any public agency relative to public improvements (K.S.A. 45-221(a)(33)).

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G. Collective bargaining records

The records pertaining to employer-employee negotiation are exempt from disclosure. K.S.A. 45-221(a)(15). But see State Dep't of Soc. & Rehab. Servs. v. Pub. Emp. Relations Bd., 249 Kan. 163, 815 P.2d 66 (1991).

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H. Economic development records

No applicable law.

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I. Election Records

Voter registration records are public records. K.S.A. 45-230(a)(4).

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J. Emergency Medical Services records

Not specifically addressed.

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K. Gun permits

Records related to persons licensed to carry concealed handguns are confidential and may not be disclosed pursuant to the KORA, but such protections only govern the disclosure of such information by a public agency. There is no language in the Personal and Family Protection Act (“PFPA”) that grants a concealed carry licensee the right to refuse to disclose his or her licensure status to a public agency employer. Kan. Att’y Gen. Op. 2014-02. However, Kansas law now allows for unlicensed concealed carry and renders this largely moot.

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L. Homeland security and anti-terrorism measures

Public agencies are not required to disclose records if the disclosure of such records “would pose a substantial likelihood of revealing security measures that protect: (A) Systems, facilities or equipment used in the production, transmission or distribution of energy, water or communications services; (B) transportation and sewer or wastewater treatment systems, facilities or equipment; or (C) private property or persons, if the records are submitted to the agency.”  K.S.A. 45-221(a)(45).

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M. Hospital reports

Medical, psychiatric, psychological or alcoholism or drug dependency treatment records are exempt from disclosure. K.S.A. 45-221(a)(3); Kan. Att’y Gen. Op. 1994-81. Since personal privacy for those undergoing evaluation or treatment for alcohol or drug abuse is protected by federal law, absent waiver of the restriction by consent of the individual, the address of persons in the custody of the Kansas Department of Corrections who reside at a facility for the purpose of alcohol or substance abuse evaluation or treatment may not be distributed as required by the KORA. Kan. Att’y Gen. Op. 2011-05.

The following records are also exempt from disclosure: hospital personnel records (Kan. Att’y Gen. Op. 1987-109); hospital financial records (Kan. Att’y Gen. Op. 1977-307); peer review records (K.S.A. 65-4915(b)); "Reportable incidents" of health care providers (K.S.A. 65-4925)); and certain licensing information (K.S.A. 65-436).

A nonprofit community mental health center under supervision and control of a county and the state Department of Social and Rehabilitation services is a public agency under KORA and is subject to KORA requirements. Kan. Att’y Gen. Op. 1994-111. However, records of state institutions for the mentally disabled are confidential. K.S.A. 76-12b11. Also, the records of community mental health or mental retardation facilities and psychiatric hospitals are privileged. K.S.A. 65-5602.

Municipal courts cannot disclose a defendant's presentence alcohol and drug evaluation reports prepared by a person or entity receiving federal assistance to third parties absent consent from defendant or a court order pursuant to 42 U.S.C. §  290dd-2(b)(2)(C) and 42 C.F.R. §  2.61 et seq.; Kan. Att’y Gen. Op. 1994-150.

Records related to independent contractors are generally open.  Kan. Att’y Gen. Op. 99-55.

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N. Personnel records

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1. Salary

K.S.A. 45-221(a)(4) states:

“Except to the extent disclosure is otherwise required by law, a public agency shall not be required to disclose . . .

Personnel records, performance ratings or individually identifiable records pertaining to employees or applicants for employment, except that this exemption shall not apply to the names, positions, salaries or actual compensation employment contracts or employment-related contracts or agreements and lengths of service of officers and employees of public agencies once they are employed as such.”

See also Kan. Att’y Gen. Ops. 1987-109; 1994-121(personnel records are exempt from disclosure).  “Salary” includes records of payments made to employees for vacation or sick leave; “salary” does not include unpaid accrued vacation and sick leave.  Kan. Att’y Gen. Ops. 10-3; 2000-08.  See also Kan. Att’y Gen. Op. 92-132 (pension plan part of salaries); Kan. Att’y Gen. Op. 91-50 (salary deduction not open); Kan. Att’y Gen. Op. 88-61 (names of employees of public agencies and salaries must be disclosed upon request).

Regarding settlement and severance agreements between public employees and public employers, Attorney General Opinion No. 93-55 includes a finding that a so-called “confidential” settlement agreement involving a public agency “would be considered as invalid against public policies expressed in the KORA.”  There, a city attorney sought to rely on K.S.A. 45-221(a)(30) as a basis to refuse to disclose a settlement agreement, citing the privacy of the individuals involved.  In rejecting the city’s position, the Attorney General noted that federal courts, upon review of a similar privacy provision in the Freedom of Information Act (FOIA), “have held that embarrassment alone does not suffice to justify nondisclosure, Simms v. CIA, 642 F.2d 562 (D.C. 1980), and recognized that if the invasion of privacy is insubstantial, a superior public interest in disclosure prevails, Campbell v. U.S. Civil Services Commission, 539 F.2d 58 (10th Cir. 1976). Attorney General Opinion No. 91-50.” Kan. Att’y Gen. Op. 93-55.

Attorney General Opinion No. 93-55 goes on to set forth the following rule to govern when a settlement agreement may contain a confidentiality clause: “application of the personal privacy exemption of the KORA depends on the nature of the terms of the settlement agreement. Only when disclosure clearly invades personal privacy of the party involved in the agreement, may it possibly be closed under this exemption.” Id.

That rule was applied in March of 2021 in a lawsuit brought by the Kansas City Star against a Kansas City suburb.  See Petition, McClatchy et al. v. Overland Park.  There, the Johnson County District Court “ruled that Overland Park must turn over its severance agreement with the police officer who shot and killed 17-year-old John Albers as he was backing out of his driveway in 2018.  The city had denied The Star’s request for the agreement under the Kansas Open Records Act (KORA), arguing it is not an ‘employment-related agreement’ subject to disclosure under the law.”  Dan Margolies, Court Orders Overland Park To Hand Over Records In Police Killing Of Teenager, KCUR, March 18, 2021.

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2. Disciplinary records

See K.S.A. 45-221(a)(4); 1994-121 (personnel records are exempt from disclosure).

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3. Applications

Letters of reference or recommendation are not open to the public. K.S.A. 45-221(a)(6).  Further, K.S.A. 45-221(a)(4) also allows a public agency to refuse to disclose records related to “applicants for employment.”  Moreover, in 2017, the Kansas Court of Appeals expanded this exemption to include the identities of those seeking elected public office.  Salina Journal, et al., v. Brownback, et al., Kansas Court of Appeals No. 115,194 (2017),

The state Department of Social & Rehabilitation Services must give a union the addresses of employees. State Dep't of Soc. & Rehab. Servs. v. Pub. Emp. Relations Bd., 249 Kan. 163, 815 P.2d 66 (1991). Kan. Att’y Gen. Op. 1990-136 asserts that addresses are discretionarily closed by agency rule.

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4. Personally identifying information

Information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy is excepted. K.S.A. 45-221(a)(30).  The definition of “clearly unwarranted invasion of personal privacy” is in K.S.A. 45-217(b).  Social security numbers, mothers' maiden names, and dates of births from “recorded instruments” may be discretionarily withheld.  Data Tree, LLC v. Meek, 279 Kan. 445, 466 (2005).  Public employee home addresses may be closed.  Kan. Att’y Gen. Op. 97-52.  In 2006, the Attorney General found:

“Because law enforcement officers will often have heightened concerns about privacy due to safety and work considerations, in most instances identifying information such as photographs, home address, home telephone number and identity of family members of an officer may be lawfully closed pursuant to K.S.A. 2005 Supp. 45-221(a)(30). K.S.A. 2005 Supp. 45-221(a)(4) may also allow a public agency to close such identifying information of a public law enforcement officer who is an employee of the agency.”

Kan. Att’y Gen. Op. 2006-8.

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5. Expense reports

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6. Evaluations/performance reviews

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7. Complaints filed against employees

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8. Other

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O. Police records

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1. Accident reports

Open to public. K.S.A. 45-217(b). Motor vehicle accident reports are official public records and shall be open for public inspection. Kan. Att’y Gen. Op. 1979-17.

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2. Police blotter

Open to the public. K.S.A. 45-217(b). The incident-based reporting system code sheet used by law enforcement agencies is a public record that must be disclosed upon request. Kan. Att’y Gen. Op. 1993-09.

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3. 911 tapes

Not specifically addressed, but presumably open unless part of a criminal investigation. K.S.A. 45-221(a)(10).

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4. Investigatory records

Investigatory records are generally closed to the public. However, a district court may order disclosure in an action brought under K.S.A. 45-222 (civil remedies to enforce KORA) if the court finds that disclosure: (1) is in the public interest; (2) would not interfere with any prospective law enforcement action; (3) would not reveal the identity of any confidential source or undercover agent; (4) would not reveal confidential investigation techniques or procedures not known to the general public; (5) would not endanger the life or physical safety of any person; and (6) would not reveal the name, address, phone number or any other information which specifically and individually identifies the victim of any sexual offense in Article 35 of Chapter 21 of the Kansas Statutes Annotated, and amendments thereto. K.S.A. 45-221(a)(10).

Criminal investigation files not concerning records of arrest, incarceration or conviction may be discretionarily opened under K.S.A. 45-221(a)(10). Kan. Att’y Gen. Op. 1992-27.

Records compiled in the process of detecting, preventing or investigating violations of criminal law are not open. Mug shots are not open. Kan. Att’y Gen. Op. 1987-25.

Disclosure of KBI reports to applicants for licenses under the Kansas Parimutuel Racing Act is permissive under KPRA and Kansas Open Records Act, if K.S.A. 45-221(a)(10)(A-F) are followed. Kansas Racing Mgmt. v. Kansas Racing Comm’n, 244 Kan. 343, 770 P.2d 423 (1989).

The rules for active investigations are in K.S.A. 45-221(a)(10) and (11).

In January 2021, a Kansas City television station filed a lawsuit against the city of Overland Park, Kansas, requesting the district court order disclosure of the Officer Involved Shooting Investigation Team report created in response to the officer-involved death of 17-year-old John Albers in 2018.  See Petition, Scripps Media Inc., d/b/a/ KSHB-TV v. Overland Park, January 19 2021.

In April, “Overland Park released a nearly 500-page report…regarding the investigation into the 2018 shooting death of John Albers by former police officer Clayton Jenison….[T]he city announced it no longer planned to fight release of the report, which had been sought for more than three years — a fight which included a lawsuit filed earlier this year by 41 Action News.”  Overland Park releases nearly 500-page shooting report in death of John Albers, April 29, 2021.

In 2021, the Sedgwick County District Court held that the city of Wichita violated KORA when it refused to disclose certain body camera footage on the basis that such footage was not in the “public interest.”  See Memorandum Decision, Wichita Eagle and Beacon Publishing Company v. City of Wichita, 17 CV 2745.  With regard to one of the claims in the case, involving a failure to disclose body camera footage of an officer allegedly involved in a hit-and-run accident, the court found that such event “is a matter of public interest because the community at large has an expectation that police investigations will be conducted fairly and appropriately, especially when a police officer is implicated.”  Id.  In the other incident involved in the case, where an Iraqi-American family was wrongly detained at a bank, the court found that “‘The Bank Incident’ is a matter of public interest because it became an issue of public controversy.”  The court ordered disclosure of the videos.  Id.

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5. Arrest records

Documents stating charges filed against individuals in municipal court and specifying scheduled court dates are open. Kan. Att’y Gen. Op. 1987-145. Jail books listing persons in jail are open. Kan. Att’y Gen. Op. 1987-25. However, correctional records pertaining to an identifiable inmate are exempt from disclosure. K.S.A. 45-221(a)(29). Kan. Att’y Gen. Op. 1984-124; see also  "16. Arrest/search warrants and supporting affidavits" below.

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6. Compilations of criminal histories

Correctional records pertaining to an identifiable inmate are exempt from disclosure. K.S.A. 45-221(a)(29). Kan. Att’y Gen. Op.s 1984-124, 1982-226.

Permanent records of specified crimes are open. Kan. Att’y Gen. Ops. 1982-226; 1979-17. Conviction records required to be kept by statute are open. Kan. Att’y Gen. Op. 1975-211.

Criminal records previously closed under a valid expungement order may not be disclosed to the victim, or anyone else, unless such person qualifies for access pursuant to K.S.A. 21-6614. Kan. Att’y Gen. Op. 1992-27. Municipal court DUI diversion agreements are public records under KORA and must be disclosed upon request. 1994-07.

Juvenile offender records generally cannot be disclosed unless a K.S.A. 38-2309 statutory exception applies. Kan. Att’y Gen. Op. 1995-94.

Information provided to the law enforcement officer as required by the sex offender registration act, K.S.A. 22-4901, et seq., is open. K.S.A. 45-221(a)(29)(C).

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7. Victims

The name, address, phone number or any other information which would specifically identify the victim of a sexual offense may not be revealed. K.S.A. 45-221(a)(10)(F). Information concerning other victims is not specifically addressed and is presumably open for inspection unless part of a criminal investigation. K.S.A. 45-221(a)(10). (Records compiled in contested case under the Crime Victims Reparations Board are open. Kan. Att’y Gen. Op. 1982-28); (Child abuse records are not open for public inspection. Kan. Att’y Gen. Op. 1977-308). In police records pertaining to a sexual assault, any victim-specific or identifying information can be deleted from the record prior to any disclosure to prevent an unwarranted invasion of personal privacy, pursuant to K.S.A. 45-221(a)(30). Kan. Att’y Gen. Op. 1992-149.  Child in need of care records and reports, including certain juvenile intake and assessment reports are mandatorily closed by statute.  See K.S.A. 38-2212; see also Kan. Att’y Gen. Op. 2004-32.

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8. Confessions

Effective July 1, 2017, law enforcement agencies are required to make electronic recordings of certain interrogations, including the “entire custodial interrogation at a place of detention when the interrogation concerns a homicide or a felony sex offense.”  K.S.A. 22-4620(e)(1).  However, “[e]very electronic recording of any statement as required by this section shall be confidential and exempt from the Kansas open records act in accordance with K.S.A. 45-229, and amendments thereto.”  K.S.A. 22-4620(g).

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9. Confidential informants

The identity of an undercover agent or informant is confidential. K.S.A. 45-221(a)(5). The identity of a confidential informant may be deleted from open records kept by law enforcement personnel. Kan. Att’y Gen. Op. 1982-226.

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10. Police techniques

Mentioned at K.S.A. 45-221(a)(10)(D). The presumption is that they are closed as part of a criminal investigation.

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11. Mugshots

Mug shots are not necessarily subject to disclosure because they are generally considered to be criminal investigation records that a law enforcement agency may choose not to disclose pursuant to K.S.A. 45-221(a)(10).  Kan. Att’y Gen. Op. 1987-25.

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12. Sex offender records

Disclosure of sex offender information is public record available for disclosure so long as the victim’s identifying information is not disclosed. K.S.A. 45-221(a)(29)(c). The state Bureau of Investigation's disclosure on the internet of sex offender registration information, when construed in harmony with the Open Records Act, does not violate the sex offender registration statute. K.S.A. 22-4901 et seq.; 45-215 et seq.; State v. Wilkinson, 9 P.3d 1, 269 Kan. 603 (2000).

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13. Emergency medical services records

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14. Police video (e.g, body camera footage, dashcam videos)

• The Kansas Legislature addressed access to body-worn camera video by defining “[e]very audio or video recording made and retained by law enforcement using a body camera or vehicle camera” to be “criminal investigation records,” and therefore undisclosable.  See K.S.A. 45-217(e).  However, an individual depicted in the recording, a family member, an individual determined to be “an heir at law,” or an attorney for any such person may also have a right to access such video under K.S.A. 45-254(c).  
• If law enforcement refuses to disclose body-worn camera footage because it constitutes a criminal investigation record, the public can access such video only through a court order if the court finds that disclosure “is in the public interest,” “would not interfere with any prospective law enforcement action, criminal investigation or prosecution,” would not reveal the identities of any undercover officers or confidential informants or investigative techniques, would not endanger anyone’s life or safety, and would not reveal personal information of a victim of a sex crime.  K.S.A. 45-221(a)(10).  An agency may also use its discretion to disclose a video recording on the same grounds, and must provide “a written citation to the specific provisions of [K.S.A. 45-221(a)(10)]” that justify the discretionary disclosure.  Id. 
• Despite the plain language of the law, after Topeka resident Domonique White was killed by police on September 28, 2017, his family was forced to get a court order to determine that Mr. White’s father was “an heir at law” entitled to see the footage.  It took over two months to produce what should have been turned over promptly.  As a result, the legislature introduced 2018 SB 361 and 2018 HB 2571; the legislature adopted, and Governor Jeff Coyler signed, an amendment to K.S.A. 45-254.  As of July 1, 2018, pursuant to 2018 K.S.A. 45-254(b), law enforcement agencies “shall allow the person [requesting access to the footage] to listen to the requested audio recording or to view the requested video recording within 20 days after making the request.”
• In 2021, the Sedgwick County District Court held that the city of Wichita violated KORA when it refused to disclose certain body camera footage on the basis that such footage was not in the “public interest.”  See Memorandum Decision, Wichita Eagle and Beacon Publ’g Co. v. City of Wichita, 17 CV 2745.  With regard to one of the claims in the case, involving a failure to disclose body camera footage of an officer allegedly involved in a hit-and-run accident, the court found that such event “is a matter of public interest because the community at large has an expectation that police investigations will be conducted fairly and appropriately, especially when a police officer is implicated.”  Id. at 13.  The other incident involved in the case, where an Iraqi-American family was wrongly detained at a bank, the court found that “‘The Bank Incident’ is a matter of public interest because it became an issue of public controversy.”  Id. at 14.  The court also reiterated that “K.S.A. 45-221(a)(10)(B) allows for the disclosure of criminal investigation records to the extent that such disclosure will not interfere with prospective law enforcement action, criminal investigations or prosecution.”  Id. at 16.  Ultimately, the court ordered disclosure of the videos.

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15. Biometric data (e.g., fingerprints)

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16. Arrest/search warrants and supporting affidavits

Such documents are not available under the Kansas Open Records Act, but may be requested and disclosed at the court’s discretion pursuant to K.S.A. 22-2302(c) and K.S.A. 22-2502(e).  When a request for a probable cause affidavit in support of a search or arrest warrant is submitted by a member of the public or media, the parties have the opportunity to file motions, under seal, concurring with or opposing such requests.  K.S.A. 22-2302(c)(3)(B); K.S.A. 22-2502(e)(3)(B).  A court is charged with determining whether any of the bases for seal advanced by the parties are sufficient for the court to find that sealing the probable cause affidavit in its entirety is “necessary to prevent public disclosure” of information it contains because that information “would” interfere with one of the rights set forth in K.S.A. 22-2302(c).  A court can deny access if it finds that disclosure would:

(A) jeopardize the physical, mental or emotional safety or well-being of a victim, witness, confidential source or undercover agent, or cause the destruction of evidence;

(B) reveal information obtained from a court-ordered wiretap or from a search warrant for a tracking device that has not expired;

(C) interfere with any prospective law enforcement action, criminal investigation or prosecution;

(D) reveal the identity of any confidential source or undercover agent;

(E) reveal confidential investigative techniques or procedures not known to the general public;

(F) endanger the life or physical safety of any person;

(G) reveal the name, address, telephone number or any other information which specifically and individually identifies the victim of any sexual offense described in article 35 of chapter 21 of the Kansas Statutes Annotated, prior to their repeal, or article 55 of chapter 21 of the Kansas Statutes Annotated or K.S.A. 2018 Supp. 21-6419 through 21-6422, and amendments thereto;

(H) reveal the name of any minor;

(I) reveal any date of birth, personal or business telephone number, driver's license number, nondriver's identification number, social security number, employee identification number, taxpayer identification number, vehicle identification number or financial account information; or

(J) constitute a clearly unwarranted invasion of personal privacy. As used in this subparagraph, "clearly unwarranted invasion of personal privacy" means revealing information that would be highly offensive to a reasonable person and is totally unrelated to the alleged crime that resulted in the issuance of the search warrant, including information totally unrelated to the alleged crime that may pose a risk to a person or property and is not of legitimate concern to the public. The provisions of this subparagraph shall only be used to redact and shall not be used to seal affidavits or sworn testimony.

On April 8, 2021, the Shawnee County District Court ordered disclosure of the affidavit related to charges filed against former Senate Majority Leader Gene Suellentrop on April 27, 2021.  The affidavit alleged that he drove the wrong way on Interstate 70 in the week hours of March 16, 2021, and that after he was stopped by law enforcement his blood alcohol level was 0.17, over twice the legal limit.

In order to obtain the affidavit, the “news media filed motions with the court seeking the document’s release.”  The judge ordered disclosure even though Suellentrop argued “that the affidavits should be sealed for the following statutory reasons: (1) disclosure of the affidavits would endanger the life or physical safety of the defendant; (2) disclosure of the affidavits would jeopardize the physical, mental or emotional safety of the defendant; and (3) the affidavits contain information that, ‘upon the Defendant being found not guilty, would constitute an unwarranted invasion of personal privacy.’”  State v. Suellentrop, Shawnee County District Court Case No. 2021-CR-000582, Order Pursuant to K.S.A. 22-2302, April 8, 2021.  The court rejected each contention, first finding that redactions would be sufficient to address any concerns that disclosure would endanger anyone, and then that neither of Suellentrop’s remaining contentions were authorized under the statute.  Id.  The court found that “[a]ll defendants are innocent unless and until proven guilty; [] disclosure of affidavits which contain specific allegations regarding the crime charged always poses the risk of unwanted publicity and damage to a defendant,” but that is not a valid justification for sealing documents under K.S.A 22-2302(c)(4).  Id.  In releasing the Suellentrop affidavit, the Shawnee County District recognized that even though disclosure of the affidavit was highly likely to produce immense pretrial publicity, any reasons advanced by the proponents to seal that affidavit were insufficient to overcome the public’s right to access.

The same framework applies to requests for search warrants under K.S.A. 22-2502.

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17. Physical evidence

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P. Prison, parole and probation reports

Inmate rosters are open for public inspection.  Kan. Att’y Gen. Op. 1984-124. However, the correctional records pertaining to an identifiable inmate are exempt from disclosure. K.S.A. 45-221(a)(29); 1984-124; 1982-226.

Prison Health Services, a private entity that contracts with the Kansas Department of Corrections to provide medical and mental health services for inmates, is not a public agency. Thus personnel records owned and maintained by Prison Health Services are not public records subject to disclosure under the Kansas Open Records Act. See K.S.A. 45-216; 45-217.

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Q. Professional licensing records

Not specifically addressed.

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R. Public utility records

The records of a utility or other public service pertaining to individually identifiable residential customers are exempt from disclosure. K.S.A. 45-221(a)(26).

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S. Real estate appraisals, negotiations

County appraiser's office must provide access to the database maintained in the office, provided that the records requested are open public records. A requester of such database may manipulate and repackage this information into a different format for sale as long as K.S.A. 21-3914 and K.S.A. 45-220(c) are followed. Kan. Att’y Gen. Ops. 1994-104; 1994-132 (Public land records are open for inspection).

Tax assessment records are open. Kan. Att’y Gen. Op. 1991-145.

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1. Appraisals

Exempted from open records act prior to the award of a contract. K.S.A. 45-221(a)(13).

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2. Negotiations

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3. Transactions

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4. Deeds, liens, foreclosures, title history

Deeds, liens and foreclosure history are public records subject to disclosure. Data Tree, LLC v. Meek, 109 P.3d 1226, 279 Kan. 445 (2005).

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5. Zoning records

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T. School and university records

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1. Athletic records

Not specifically addressed. Presumably open for inspection but may be preempted by federal law.

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2. Trustee records

Not specifically addressed. Presumably open for inspection but may be preempted by federal law.

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3. Student records

Applications, financial statements and other information submitted in connection with applications for student financial assistance are exempt from disclosure. K.S.A. 45-221(a)(17). Other records are presumably open but may be preempted by federal law.

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4. School foundation/fundraising/donor records

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5. Research material or publications

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6. Other

Performance records. Personnel records are exempt from disclosure. K.S.A. 45-221(a)(4); Kan. Att’y Gen. Op. 1987-109.

An individual county commissioner may not examine personnel records which are otherwise not open for public inspection. However, if appropriate actions are taken as a board at an open meeting, an entire board of county commissioners may inspect county personnel records. Kan. Att’y Gen. Op. 1994-121.

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U. State guard records

Not specifically addressed.

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V. Tax records

Records specifically prohibited or restricted from disclosure by federal law, state statute, or rule of the Kansas Supreme Court are exempt from the KORA. K.S.A. 45-221(a)(1). This includes tax return information. Kan. Att’y Gen. Op. 1990-20; K.S.A. 79-3614.

A public agency shall delete the identifiable portions of the record and make available to the requester any remaining portions which are subject to disclosure pursuant to KORA. The agency is not required to disclose portions of records pertaining to a specific individual or such a limited group that the individual identities are reasonably ascertainable. K.S.A. 45-221(d). (May delete certain tax information and court settlements from financial statements, Kan. Att’y Gen. Op. 1983-49).

Tax audit records are public records under KORA, but some information contained in such records may be confidential and disclosure is prohibited by K.S.A. 79-3234. Kan. Att’y Gen. Op. 1995-06.

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W. Vital Statistics

Vital statistics are not available for public disclosure pursuant to K.S.A. 45-221(a) and K.S.A. 65-2422d(c).

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1. Birth certificates

Birth certificates are not available for public disclosure pursuant to K.S.A. 45-221(a) and K.S.A. 65-2422d(c).

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2. Marriage and divorce

As of October 1, 2015, the Kansas Supreme Court amended Supreme Court Rule 106 so that “marriage licensing documents in the custody of a district court are confidential and are not subject to disclosure under the Kansas Open Records Act, K.S.A. 45-215 et seq.”  Instead, courts are to prepare a “limited marriage record” that prohibits the inclusion of certain information, including an applicant's date or city of birth and an applicant's mother’s maiden name.”

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3. Death certificates

Death certificates are not available for public disclosure pursuant to K.S.A. 45-221(a) and K.S.A. 65-2422d(c).

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4. Infectious disease and health epidemics

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IV. Procedure for obtaining records

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A. How to start

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1. Who receives a request?

The custodian receives requests to inspect records. If the person who receives the request is not the custodian of the public record requested, such person shall notify the requester and shall furnish the name and location of the custodian, if known or readily ascertainable. K.S.A. 45-218(c).  The custodian may “designate other persons as necessary to carry out the duties of the custodian under the provisions of the Kansas open records act.”  Kan. Att’y Gen. Op. 90-89.

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2. Does the law cover oral requests?

An agency may require a written request for inspection, but shall not otherwise require a request to be made in any particular form. K.S.A. 45-220(b).  Once a record requestor has submitted a written request that is understood by the record custodian, an agency form is not required.  Kan. Att’y Gen. Op. 2009-18.

A public agency may require a person desiring to inspect public records to notify the agency not more than 24 hours prior to the hours established for inspection and obtaining copies. Such notice shall not be required to be in writing. K.S.A. 45-220(d).

If a request is denied, the custodian, upon request, shall provide a written statement of the grounds for denial. K.S.A. 45-218(d).

The KORA does not require additional written steps; however, proof of requests may be necessary in enforcement actions under K.S.A. 45-222.

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3. Required contents of a written request

An agency may require a written request for inspection, but shall not otherwise require a request to be made in any particular form. K.S.A. 45-220(b).

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4. Can the requester choose a format for receiving records?

Generally, a requester can only choose a format in which the record is already held.  Any person has the right to obtain a computerized voter registration list in electronic format if the public agency has the capability of providing such record in electronic format. Kan. Att’y Gen. Op. 1988-152; see also K.S.A. 45-501.

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5. Availability of expedited processing

Once an enforcement action is filed in district court under K.S.A. 45-222, “proceedings arising under this section shall be assigned for hearing and trial at the earliest practicable date.”  K.S.A. 45-222(g).

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B. How long to wait

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1. Statutory, regulatory or court-set time limits for agency response

A request must “be acted upon as soon as possible, but not later than the third business day following the date the request is received.” K.S.A. 45-218(d). "As soon as possible" means without undue delay, and immediately, if circumstances make that possible. Stauffer Commc’s Inc. v. Hayes, District Court of Jefferson Co., No. 87 C 66 (1987).  K.S.A. 45-218(c) also provides that “[i]f access to the public record is not granted immediately, the custodian shall give a detailed explanation of the cause for further delay and the place and earliest time and date that the record will be available for inspection. If the request for access is denied, the custodian shall provide, upon request, a written statement of the grounds for denial. Such statement shall cite the specific provision of law under which access is denied and shall be furnished to the requester not later than the end of the third business day following the date that the request for the statement is received.” K.S.A. 45-218(c).

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2. Informal telephone inquiry as to status

Not specifically addressed.

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3. Is delay recognized as a denial for appeal purposes?

A delay is not recognized as a denial for appeal purposes. If the request is not granted immediately, the custodian is required to give a detailed explanation of the cause for further delay and the place and earliest time and date that the record will be available for inspection. K.S.A. 45-218(d).

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4. Any other recourse to encourage a response

Not specifically addressed.

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C. Administrative appeal

There are no provisions for appealing a denial of requested records. A requester may proceed directly to the district court. However, administrative appeals are an option for other issues, such as with respect to fees.

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1. Time limit to file an appeal

Not applicable because there are no provisions for appealing a denial of requested records.

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2. To whom is an appeal directed?

There are no provisions for an appeal on the merits. A requester may proceed directly to the district court.

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3. Fee issues

Any person requesting records may appeal the reasonableness of the fees charged for providing access to or furnishing copies of such records to the Secretary of Administration whose decision shall be final. K.S.A. 45-219(c)(5).

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4. Contents of appeal

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5. Waiting for a response

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6. Subsequent remedies

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D. Additional dispute resolution procedures

Any person can bring suit. The state trial court has jurisdiction. K.S.A. 45-222.

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1. Attorney General

In investigating alleged violations, the Attorney General or county/district attorney may subpoena witnesses, investigate, etc. K.S.A. 45-228.

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2. Ombudsperson

Government bodies shall designate a local freedom of information officer who can be available to resolve disputes. K.S.A. 45-226.

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3. Other

Effective July 1, 2015, the Kansas Legislature enacted HB 2256 which made sweeping changes to enforcement provisions of the KORA and Kansas Open Meetings Act. The bill allows the Attorney General, by a preponderance of the evidence after investigation, to find a violation and enter into a consent order with the public agency or issue a finding of violation to the agency prior to filing an action in district court. A consent order, which must be signed by the head of the public agency and any officer found to have violated the statute, may contain admissions of fact, require completion of training approved by the Attorney General, impose a civil penalty of up to $250 for each violation and set forth the agency’s agreement to comply with the requirements of KORA or KOMA. K.S.A. 45-251(a)(1)(A)(ii).  A finding of violation may contain orders to cease and desist from further violation, comply with KORA or KOMA, complete training approved by the Attorney General and pay a civil penalty of up to $500 for each violation.  K.S.A. 45-251(c)(4)(B).

The Attorney General can then apply to the district court for enforcement in the county where the consent order or finding of violation is issued or is effective.  K.S.A. 45-251(c)(2).  If the court finds the Attorney General did not abuse their discretion in entering into the order or issuing the finding, the court shall enter an order which enjoins the agency to comply, imposes a civil penalty not less than the amount ordered and not more than $500 for each violation, requires the public agency to pay the Attorney General’s court costs and investigative costs and provides any other remedy the court deems appropriate.  K.S.A. 45-251(c)(4).  The court may require the public agency to pay the Attorney General’s attorney fees and is required to do so if the violation was not made in good faith and was without reasonable basis in fact or law.  K.S.A. 45-251(c)(5)(A).

The bill also creates, in the State Treasury, the Attorney General’s Open Government Fund to be used to carry out provisions of the KORA and Kansas Open Meetings Act. HB 2256 New Sec. 7(a).

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E. Court action

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1. Who may sue?

Any person aggrieved by a violation. K.S.A. 45-222(a). This includes the Attorney General, as well as county and district attorneys.  As of 2015, the Attorney General’s Office may also bring an action in the district court as a means of enforcing consent orders against offending agencies.  See K.S.A. 45-251(c)(1) and (2).

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2. Priority

Suits under the act are assigned for hearing at the "earliest practicable date." K.S.A. 45-222(e).

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3. Pro se

K.S.A. 45-222(a) provides that a civil action in district court under KORA may be “brought by any person.”  There is no requirement that an attorney must represent that person.  Attorney fees, which a court can award if the agency to whom the request is directed acts in bad faith and without a reasonable basis in fact or law, may not be available to pro se litigants.

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4. Issues the court will address

The court may address any issue raised "to enforce the purpose" of the Act. K.S.A. 45-222(a).

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a. Denial

K.S.A. 45-222(c) provides that “in any action hereunder, or under K.S.A. 2018 Supp. 45-251, and amendments thereto, the burden of proof shall be on the public agency to sustain its action.”  Thus, the defendant agency must prove by preponderance of the evidence that the requested record fits the exemption(s) contained in K.S.A. 45-221(a)(1) through (55) authorizing its nondisclosure.

The burden of proof related to litigating whether criminal investigation records were properly withheld under K.S.A. 45-221(a)(10) is more complicated.  In Harris v. Moore, the Kansas Supreme Court ruled, contrary to the plain language of the statute, that a plaintiff requesting “criminal investigation records” must prove that disclosure of the records is “in the public interest” under K.S.A. 45-221(a)(10).  The “burden of establishing that disclosure is in the public interest lies with the person seeking disclosure.”  Harris, 241 Kan. at 65; see also HN 3 (“Under K.S.A. 45–221(a)(10)(A), the burden of establishing that disclosure of criminal investigation files is in the public interest is upon the person.”)

As to the remaining factors set forth in K.S.A. 45-221(a)(10), the agency is tasked with proving that disclosure of the requested records would result in “probable harm” as described in K.S.A. 45–221(a)(10)(B) through (F).  See Harris, 241 Kan. at 65.

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b. Fees for records

If at issue, the court is required to determine whether the fee is “reasonable” under K.S.A. 45-219(c).  “[T]he fees shall not exceed the actual cost of furnishing copies, including the cost of staff time required to make the information available.”  K.S.A. 45-219(c)(1).

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c. Delays

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d. Patterns for future access (declaratory judgment)

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5. Pleading format

No particular format is specified; the action is a civil suit governed by K.S.A. Chapter 60.

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6. Time limit for filing suit

There is no provision for limitation of actions under K.S.A. 45-222(a). K.S.A. 60-512 contains a three-year statute of limitations for "liability created by a statute," but depending upon the relief sought, a plaintiff should file a timely suit to avoid laches.

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7. What court?

Suit is filed in District Court of any county where the records are located. K.S.A. 45-222(a).

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8. Burden of proof

K.S.A. 45-222(c) provides that “in any action hereunder, or under K.S.A. 2018 Supp. 45-251, and amendments thereto, the burden of proof shall be on the public agency to sustain its action.”  Thus, the defendant agency must prove by preponderance of the evidence that the requested record fits the exemption or exemptions contained in K.S.A. 45-221(a)(1) through (55) authorizing its nondisclosure.

The burden of proof related to litigating whether criminal investigation records were properly withheld under K.S.A. 45-221(a)(10) is more complicated.  In Harris Enterprises, Inc. v. Moore, the Kansas Supreme Court ruled, contrary to the plain language of the statute, that a plaintiff requesting “criminal investigation records” must prove that disclosure of the records is “in the public interest” under K.S.A. 45-221(a)(10).  The “burden of establishing that disclosure is in the public interest lies with the person seeking disclosure.”  Harris Enters., Inc. v. Moore, 241 Kan. 59, 65–66 (1987).

As to the remaining factors set forth in K.S.A. 45-221(a)(10), the agency is tasked with proving that disclosure of the requested records would result in “probable harm” as described in K.S.A. 45–221(a)(10)(B) through (F).  See Harris, 241 Kan. at 65.

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9. Judicial remedies available

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10. Litigation expenses

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a. Attorney fees

Both the plaintiff and defendant in a civil action brought under KORA may recover attorney fees.  For the requester, the court “shall award costs and a reasonable sum as an attorney's fee for services rendered in such action, including proceedings on appeal, to be recovered and collected as part of the costs to the plaintiff if the court finds that the agency's denial of access to public records was not in good faith and without a reasonable basis in fact or law. The award shall be assessed against the public agency that the court determines to be responsible for the violation.”  K.S.A. 45-222(d).  For the agency, “the court shall award to the defendant costs and a reasonable sum as an attorney's fee for services rendered in such action, including proceedings on appeal, to be recovered and collected as part of the costs if the court finds that the plaintiff maintained the action not in good faith and without a reasonable basis in fact or law.”  K.S.A. 45-222(e)

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b. Court and litigation costs

Both the plaintiff and defendant in a civil action brought under KORA may recover costs.  For the requester, the court “shall award costs and a reasonable sum as an attorney's fee for services rendered in such action, including proceedings on appeal, to be recovered and collected as part of the costs to the plaintiff if the court finds that the agency's denial of access to public records was not in good faith and without a reasonable basis in fact or law. The award shall be assessed against the public agency that the court determines to be responsible for the violation.”  K.S.A. 45-221(d).  For the agency, “the court shall award to the defendant costs and a reasonable sum as an attorney's fee for services rendered in such action, including proceedings on appeal, to be recovered and collected as part of the costs if the court finds that the plaintiff maintained the action not in good faith and without a reasonable basis in fact or law.”  K.S.A. 45-221(e).

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11. Fines

The district court has no authority to assess fines in an action brought by a private individual.  See K.S.A. 45-222.  In an action brought by the attorney general in district court, the court may assess civil penalties of up to $500.  K.S.A. 45-223.  The attorney general also has authority to assess civil penalties in connection with consent orders under K.S.A. 45-251.

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12. Other penalties

In an action brought by a private person under K.S.A. 45-222, “[t]he district court may require a defendant to complete training approved by the attorney general concerning the requirements of the open records act.”  K.S.A. 45-222(a). In a private enforcement action, attorney fees may be awarded to a party if the court finds that the other party’s conduct was in bad faith and without a reasonable basis in fact or law. K.S.A. 45-222(c).

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13. Settlement, pros and cons

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F. Appealing initial court decisions

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1. Appeal routes

Appeal is to the Kansas Court of Appeals, then upon application for review (discretionary) to the Kansas Supreme Court.

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2. Time limits for filing appeals

Thirty days from final judgment.

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3. Contact of interested amici

Amicus briefs are allowed on application only. Sup. Ct. Rule 6.06. Amici are not permitted oral argument.

The Reporters Committee for Freedom of the Press often files amicus briefs in cases involving significant media law issues before a state's highest court.

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G. Addressing government suits against disclosure

In 2012, Kansas Attorney General Derek Schmidt filed a civil action in Shawnee County District Court to obtain a temporary restraining order to prevent publication of certain notes and other materials that had been held by a deceased Kansas Bureau of Investigation (KBI) agent.  The agent, Harold Nye, had compiled the materials while investigating the notorious 1959 murder of the Clutter family in Holcomb, Kansas.  The murder case was famously described by Truman Capote in his 1966 best-seller, In Cold Blood.

Although the attorney general initially secured a temporary restraining order and preliminary injunction preventing publication, the district judge ultimately vacated those orders, finding such a prior restraint improper.  See Memo. Decision & Order, State of Kansas, ex rel. Attorney General Derek Schmidt v. Nye, et al., Shawnee County District Court Case No.12 CV 1053 (Shawnee Cty. Dist. Ct. Nov. 26, 2014), http://www.shawneecourt.org/DocumentCenter/View/526.

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Open Meetings

The Kansas Open Meetings Act (KOMA) “applies when there are meetings of public bodies subject to the act.”  Kan. Att’y Gen. Op. 1995-112.  “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.”  K.S.A. 75-4317(a).  A statute, such as KOMA, “enacted for the public benefit should be construed liberally in favor of the public.”  State ex rel. Murray v. Palmgren, 231 Kan. 524, 531 (1982).

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I. Statute - basic application

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A. Who may attend?

Any person. K.S.A. 75-4318(a).

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B. What governments are subject to the law?

“[A]ll meetings for the conduct of the affairs of, and the transaction of business by, all legislative and administrative bodies and agencies of the state and political and taxing subdivisions” of the state of Kansas, “including boards, commissions, authorities, councils, committees, subcommittees and other subordinate groups thereof, receiving or expending and supported in whole or in part by public funds shall be open to the public.”  K.S.A. 75-4318(a).

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1. State

State governments are subject to the law. K.S.A. 75-4318(a).

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2. County

County governments are subject to the law. K.S.A. 75-4318(a).

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3. Local or municipal

City governments are subject to the law. K.S.A. 75-4318(a).  “[T]he [c]ity is a unit of government subject to the Kansas Open Meetings Act[.]” City of Topeka v. Imming, 51 Kan. App. 2d 247, 254, 344 P.3d 957, 963 (2015).

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C. What bodies are covered by the law?

“[A]ll meetings for the conduct of the affairs of, and the transaction of business by, all legislative and administrative bodies and agencies of the state and political and taxing subdivisions” of the state of Kansas, “including boards, commissions, authorities, councils, committees, subcommittees and other subordinate groups thereof, receiving or expending and supported in whole or in part by public funds shall be open to the public.”

K.S.A. 75-4318(a).

The Attorney General has specifically found that the following bodies are subject to KOMA: cities, counties, townships (Kan. Att’y Gen. Op. 81-288); school districts, community colleges (Kan. Att’y Gen. Op. 81-258); watershed districts (Kan. Att’y Gen. Op. 85-161); rural water districts (Kan. Att’y Gen. Op. 89-92 and 88-97); drainage districts (Kan. Att’y Gen. Op. 90-69); and local historic preservation committees administering K.S.A. 75-2724 (Kan. Att’y Gen. Op. 99-22).  State agencies and boards are also subject to KOMA, unless otherwise provided by statute.  Kan. Att’y Gen. Op. 86-176.  For example, bodies conducting hearings under the Kansas Administrative Procedure Act (KAPA) are not subject to KORA under K.S.A. 77-523.  See also Kan. Att’y Gen. Op. 2014-17 (if KAPA doesn’t apply, meeting is subject to KOMA). Private organizations are generally not subject to KOMA, including private/parochial schools (Kan. Att’y Gen. Op. 81-94) and nursing homes (Kan. Att’y Gen. Op. 79-221).  Prisoner review board parole hearings are not subject to KOMA.  K.S.A. 75-4318(g)(2).

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1. Executive branch agencies

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a. What officials are covered?

Only those who are members of a governing body. Office of mayor is separate and distinct from the members of the council and, therefore, not covered by KOMA. Kan. Att’y Gen. Op. 1986-110.

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b. Are certain executive functions covered?

A mayor who breaks a tie vote is not a member of the council unless expressly made a member by statute. Kan. Att’y Gen. No. 1986-110.

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c. Are only certain agencies subject to the act?

Kansas law does not exclude any specific agency except courts. K.S.A. 75-4318(a). However, the provisions of the open meetings law shall not apply:

(1) To any administrative body that is authorized by law to exercise quasi-judicial functions when such body is deliberating matters relating to a decision involving such quasi-judicial functions;

(2) To the parole board when conducting parole hearings or parole violation hearings held at a correctional institution.

(3) To any impeachment inquiry or other impeachment matter referred to any committee of the house of representatives prior to the report of such committee to the full house of representatives; and

(4) If otherwise provided by state or federal law or by rules of the Kansas Senate or House of Representatives.

(5) If the Kansas Administrative Procedure Act applies to a proceeding, the KOMA is necessarily precluded from application. Kan. Att’y Gen. Op. 2014-07.

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2. Legislative bodies

Covered by KOMA as long as governing body rules so provide.  K.S.A. 75-4318(g)(4).  KOMA applies to legislative conference committee meetings. Kan. Att’y Gen. Op. 1993-113.

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3. Courts

Not included in the definition and thus not subject to KOMA.  K.S.A. 75-4318(a); (Supreme Court Nominating Committee is not subject to KOMA. Kan. Att’y Gen. Op. 82-254).

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4. Nongovernmental bodies receiving public funds or benefits

A non-profit organization is subject to KOMA if it receives or expends public funds; is subject to control of governmental units; and acts as a governmental agency in providing services or has independent authority to make governmental decisions.  See, e.g., Kan. Att’y Gen. Op. 1994-111.

The Attorney General has found that the following non-profit organizations are covered by KOMA under K.S.A. 75-4318(a): McPherson County Diversified Services Inc.. (Kan. Att’y Gen. Op. 1979-284); Area Agencies on Aging (Kan. Att’y Gen. Op. 79-219); Memorial Hospital Association (Kan. Att’y Gen. Op. 1985-49); Hospital Board of Trustees are subject to KOMA. (Kan. Att’y Gen. Op. 1986-38); Southwest Developmental Services Inc. (Kan. Att’y Gen. Op. 1994-111); Economic Opportunity Foundation (Kan. Att’y Gen. Op. 84-10); Three Rivers, Inc. (Kan. Att’y Gen. Op. 87-143); Cowley County Diversified Services (Kan. Att’y Gen. Op. 87-188); and HELP, Inc. (Kan. Att’y Gen. Op. 88-27).

The Kansas Supreme Court found that a notification center furnished public functions, and the legislature was permitted to treat the corporation differently from other private corporations not subject to Open Records Act and Open Meetings Act.  Kansas One-Call Sys., Inc. v. State, 294 Kan. 220, 274 P.3d 625 (2012).

Mere receipt of public funds is insufficient to bring an otherwise private nonprofit corporation within the KOMA. Kan. Att’y Gen. Op. 2001-02. The Attorney General has found that the following non-profit organizations are not subject to KOMA: Private nursing home receiving public funds (Kan. Att’y Gen, Op. 1979-221); University of Kansas and Wichita State University Endowment Associations (Kan. Att’y. Gen. Ops. 82-172 and 80-239); Planned Parenthood (Kan. Att’y Gen. Op. 81-253); Hutchinson Cosmosphere (Kan. Att’y Gen. Op. 82-256); electric cooperatives (Kan. Att’y Gen. Op. 85-175); Parsons Chamber of Commerce (Kan. Att’y Gen. Op. 89-149); K-10 Corridor Development, Inc. (Kan. Att’y Gen. Op. 94-42); Koch Commission (Kan. Att’y Gen. op. 94-55); Mid-America Commercialization Corporation (Kan. Att’y Gen. Op 1994-99); Kansas Venture Capital Inc. (Kan. Att’y Gen. Op. 1994-107); Consensus Estimating Group (Kan. Att’y Gen. Op. 94-93); Prairie Village Economic Development Commission (Kan. Att’y Gen. Op. 99-64); Hesston Area Senior Center (Kan. Att’y Gen. Op. 2001-02); Sheltered Living, Inc. (Kan. Att’y Gen. Op. 2004-34); and Kansas State University Student Senate (Kan. Att’y Gen. Op. 77-174).

The Kansas Supreme Court found that a non-profit operating a county hospital was not subject to KOMA under the facts of that case.  There, the organization leased the hospital for $1.00 per year and received $228,000 from the county mill levy budgeted by county hospital board of trustees, about 4.8% of total revenues; the court held this was a limited receipt of public funds.  Memorial Hospital Ass’n Inc. v. Knutson, 239 Kan. 663 (1986).

Hospital board discussions regarding risk management and peer review are not required to be held in accordance with KOMA.  See Kan. Att’y Gen. Op. 89-42.

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5. Nongovernmental groups whose members include governmental officials

Those receiving or expending public funds and supported in whole or in part by public funds are subject to KOMA, K.S.A. 75-4318(a); Kan. Att’y Gen. Ops. 1980-201 (Garden City/Finney County Alcohol Fund Advisory Committee is subject to KOMA) and 1991-150. A political party precinct committee is not an administrative or legislative agency of state or local government and is not subordinate to such a body. Such a committee is not subject to KOMA. Kan. Att’y Gen. Op. 1994-157.

Boards composed of members of different governmental bodies are subject to KOMA if they are appointed by official action (Kan. Att’y Gen. Op. 86-48) or if the majority of a public body is present.  See Kan. Att’y Gen. Ops. 84-103 and 91-150.

K.S.A. 77-523(f) specifically provides that a hearing under the Kansas Administrative Procedure Act is not a meeting for the purposes of the Kansas Open Meetings Act. Kan. Att’y Gen. Op. 2014-07.

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6. Multi-state or regional bodies

Those receiving or expending public funds and supported in whole or in part by public funds are subject to KOMA, K.S.A. 75-4318(a).

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7. Advisory boards and commissions, quasi-governmental entities

Such an entity is subject to KOMA if it:

1. is a body or agency within the meaning of the Act; and
2. has legislative or administrative powers or at least is legislative or administrative in its method of conduct; and
3. must be a governmental entity at the state or local level, whether it is the governing body or some subordinate group; and
4. must receive or expend public funds or be a subordinate group of a body subject to the Act; and
5. must be supported in whole or in part by public funds or be a subordinate group of a body which is so financed. State ex rel Murray v. Palmgren, 231 Kan. 524, 535, 646 P.2d 1091 (1982); Smoot and Clothier, Open Meetings Profile: The Prosecutor's View, 20 Washburn L.J. at 256-57; Kan. Att’y Gen. Ops. 1986-84, 1993-41, 1993-73, 1993-130. Governor-Elect advisory groups were held not subject to KOMA. Associated Press v. Sebelius, 31 Kan. App 2d. 1107, 78 P.3d 486 (2003).

Administrative bodies exercising quasi-judicial functions when the body is deliberating matters relating to a decision involving quasi-judicial functions are not subject to KOMA, but binding action must be in an open meeting.  See Kan. Att’y Gen. Ops. 91-31, 84-50 and 79-225.  The Attorney General has found that the following administrative bodies were performing quasi-judicial functions not subject to KOMA: zoning boards (Kan. Att’y Gen. Op. 78-13); city grievance panels (Kan. Att’y Gen. Op. 91-31) and hearing panels (Kan. Att’y Gen. Op. 97-40).

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8. Other bodies to which governmental or public functions are delegated

Generally, subordinate groups, such as boards, commissions, authorities, councils, committees, subcommittees are covered by act if the parent or controlling body meets funding test under State ex rel. Murray v. Palmgren, 231 Kan. 524 (1982) and the group was appointed by a parent body to weigh options, discuss options, or present recommendations or a plan of action. "First the group of people meeting together must be a 'body or agency' within the meaning of the Act. Second, the group must have legislative or administrative powers or at least be legislative or administrative in its method of conduct. Third, the body must be part of a governmental entity at the state or local level, whether it is the governing body, or some subordinate group. Fourth, it must receive or expend public funds or be a subordinate group of a body which is so financed."  State ex rel. Murray v. Palmgren, 231 Kan. 524 (1982).

It is the nature of the group, not its designation, which determines if it is subject to KOMA. Kan. Att’y Gen. Op. 86-92; see also Kan. Att’y Gen. Ops. 86-38; 80-201; 77-53; 76-140; 76-122; 73-235.

Memorial Hospital Ass'n, Inc. v. Knutson, 239 Kan. 663 (1986) established that certain groups are not subordinate:  "(1) those which are merely advisory and have no decision-making authority, and (2) those which are basically independent entities which have some connection, by contract or other tie to a government entity, but are not actually created by some form of government action."

In Associated Press v. Sebelius, 31 Kan. App. 2d 1107 (2003), the court found that because Kathleen Sebelius, as governor-elect, and not the government itself, created an administration transition group, it was not a state agency or subordinate to any such agency. Thus, the crucial inquiry is whether the committee has any authority to make decisions.  If it is purely advisory, it is likely not subject to KOMA.

The Attorney General has specifically found that the following subordinate groups are subject to KOMA: School District Advisory Board (Kan. Att’y Gen. Op. 84-81); Fire District Advisory Board (Kan. Att’y Gen. Op. 86-84); Mayor’s Commission (Kan. Att’y Gen. Op. 88-25); appointed grievance committees created by a city to hear employee grievances (Kan. Att’y Gen. Op. 91-31); SRS Drug Utilization Review Board (Kan. Att’y Gen. Op. 93-41); parental boards under Recreation Commission (Kan. Att’y Gen. Op. 93-73); House and Senate conference committees (Kan. Att’y Gen. Op. 93-113).  Meetings of task forces, advisory committees or subcommittees of advisory committees created pursuant to a governor’s executive order shall be open to the public. K.S.A. 75-4318(a).

Staff meetings are not covered by the law.  In 2021, the Attorney General’s Office ruled that meetings of the University of Kansas’s Pandemic Medical Advisory Team were “akin to staff meetings,” even though the university chancellor was the group’s leader and one of its members “prepared a document called ‘Decision-Making Framework for Changes to State of Campus Operation.’” Lauren Fox, Kansas attorney general says that KU’s pandemic meetings are ‘akin to staff meetings,’ do not violate open meetings act, The Lawrence Journal-World, January 12, 2021 (referencing the Attorney General’s letter).

 

 

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9. Appointed as well as elected bodies

Both appointed and elected bodies are subject to KOMA if they meet the standards set out for advisory, commissions, or other bodies to which government functions are delegated. Kan. Att’y Gen. Op. 1994-55.

Records of applicants for appointment to new seats on a county commission were not excepted under KORA, because the applications were not for state employment, did not fall under pre-decisional work by the governor and did not fall under the exception for correspondence between a public agency and private individual. Salina Journal and Associated Press v. Sam Brownback, et. al., 394 P.3d 134 (Kan. App. 2017).

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D. What constitutes a meeting subject to the law

Under KOMA, a “meeting” is:

(1) any gathering or assembly in person or through the use of a telephone or any other medium for interactive communication;

(2) by a majority of the membership of a public body or agency subject to this act; and

(3) for the purpose of discussing the business or affairs of the public body or agency. See K.S.A. 75-4317a.

Informal discussion before, after or during recesses of public meeting are subject to KOMA.  Coggins v. Pub. Emp. Relations Bd., 2 Kan. App. 2d 416, 423, rev. denied 225 Kan. 843 (1978).  But social gatherings or educational settings (i.e., professional conferences) where a majority of the members of a governing body is present do not violate the law as long as the members do not discuss the “specific business or affairs” of the body.  Kan. Att’y Gen. Op. 82-133.

Any person may attend open meetings.  Kan. Att’y Gen. Op. 80-43.

K.S.A. 75-4318 requires the “meeting” to “be open to the public.”  Kan. Att’y Gen. Op. 2005-3.  The key to openness is whether the meeting location is accessible to the public.  Stevens v. City of Hutchinson, 11 Kan. App. 2d 290, 726 P.2d 279 (1986); Kan. Att’y Gen. Ops. 2011-23; 86-153; 82-133; 80-148; and 79-253.  “The body should make reasonable efforts to allow the general public to attend and listen to the discussions. What is reasonable will depend upon the facts of each situation. The key to determining whether a meeting is "open" is whether it is accessible to the general public, in the sense that it allows the public to listen to the discussion.”  Kan. Att’y Gen. Op. 2005-3.  Members of the public do not have a right to speak at an open meeting under KOMA.  Id.  Local ordinances or policies may provide for comment periods by members of the public; such policies must be reasonable time, place and manner restrictions that do not amount to viewpoint discrimination.

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1. Number that must be present

Majority must be present. K.S.A. 75-4317a.  “[U]nless otherwise specifically defined, a majority of the membership of the entire body constitutes a quorum, and that "majority" means the next whole number greater than half the total number of members.”  Kan. Att’y Gen. Op. 87-132; see also Kan. Att’y Gen. Ops. 2002-41; 93-140; 87-152; 87-45; 86-110; and 83-174.

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a. Must a minimum number be present to constitute a "meeting"?

Majority must be present. K.S.A. 75-4317a.  In 2009, the legislature addressed “serial meetings” i.e., communications involving less than a majority of the members of an agency, but which collectively resulted in at least a majority involvement.  Interactive communications now must be open if they 1) collectively involve a majority of the members; 2) share a common topic or discussions of the agency’s affairs; 3) are intended by any or all participants to reach agreement in a matter that would require binding action. K.S.A. 75-4318(f).

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b. What effect does absence of a quorum have?

KOMA does not apply and no official action may be taken without a quorum. K.S.A. 75-4317a; Kan. Att’y Gen. Op. 1986-110.

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2. Nature of business subject to the law

“[I]n order for a meeting of a public body to be subject to the requirements of the Open Meetings Act, it is not necessary that business be formally transacted.”  Kan. Att’y Gen. Op. 1979-200.  “Discussion of the affairs and business of the body is all that is necessary to invoke the provisions of the Act.”  Id.

Binding action by the public body must be considered in open session, and “no binding action by such public bodies or agencies shall be by secret ballot.”  K.S.A. 75-4318(a).  The public must be able to ascertain how each member voted.  Kan. Att’y Gen. Ops. 93-55; 86-176; 81-106; and 79-167.

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a. "Information gathering" and "fact-finding" sessions

Title of gathering is irrelevant if the requirements of a meeting under K.S.A. 75-4317a are met.  Kan. Att’y Gen. Op. 90-47.  Work sessions of a city council are subject to the Act. Kan. Att’y Gen. Op. 1980-197. Fact finding board is subject to the Act, In re Univ. of Kansas Faculty, 2 Kan. App. 2d 416, 581 P.2d 817 (1978); Kan. Att’y Gen. Op. 1976-343.

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b. Deliberation toward decisions

All stages of the decision-making process are subject to the Act. In re Univ. of Kansas Faculty, 2 Kan. App. 2d 416, 581 P.2d 817 (1978); Kan. Att’y Gen. Op. 1980-197.  Deliberations by administrative bodies that are authorized by law to exercise quasi-judicial functions when such bodies are deliberating matters relating to a decision involving such quasi-judicial functions, are not open.  K.S.A. 75-4318(g)(1).

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3. Electronic meetings

Bodies subject to KOMA may conduct meetings by telephone or other interactive mediums as long as other requirements are met.  Kan. Att’y Gen. Ops. 2011-23; 2005-03; 81-268; 80-173; and 80-159.  Interactive communication, for the purposes of the KOMA, requires a mutual or reciprocal exchange between or among members of a body or agency subject to KOMA. Kan. Att’y Gen. Op. 2009-22. Interactive communication does not occur when a non-member of a body or agency communicates with a majority of that body or agency board and a member responds and shares the response with other members. Id. Should there be further interactive communications among a majority of the members concerning the business of the body, and there is an intent by any or all of the participants to reach agreement on a matter that would require binding action, those communications are subject to the Kansas Open Meetings Act. Id.

School board members may violate KOMA if three or more members simultaneously engage in interactive discussion of board business through the use of computers. K.S.A. 75-4317, et seq.  However, the sending of electronic mail to other board members, standing alone, does not constitute "interactive communications" under KOMA. Kan. Att’y Gen. Op. 1995-13. But, majority must be present. K.S.A. 75-4317a.

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a. Conference calls and video/Internet conferencing

Telephone meetings are within the definition of "meeting" in K.S.A. 75-4317a. A public body subject to the Kansas Open Meetings Act may legally conduct meetings by telephone, if it does so in compliance with all of the requirements of the KOMA. Regardless of whether a meeting is to be conducted telephonically, in person, by video-conference, or even through third parties, the requirements of the KOMA remain applicable. Kan. Att’y Gen. Op. 2005-3. A public entity subject to the Kansas Open Meetings Act may conduct meetings outside of Kansas or by teleconference or videoconference if the public entity complies with all of the requirements of the Kansas Open Meetings Act. Kan. Att’y Gen. Op. 2011-23.

After the governor made an emergency declaration in response to the COVID-19 pandemic in 2020, a regulation was promulgated providing that the requirements of the Kansas Open Meetings Act would still be met even if  the “declaration prevent[ed] or impede[d] the ability…to conduct meetings by physically gathering in person." K.A.R. 16-20-1(a)(3). A public agency is required, among other things, to “Use a medium for interactive communication that, at a minimum, allows members of the public, without cost, to listen to the meeting and, if available, also allows video observation of the meeting” and “to describe at the beginning of the meeting whether public comment will be allowed and what process will be used to identify any individual who wishes to comment, if permitted . . . .”  K.A.R. 16-20-1(e).

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b. E-mail

E-mail alone is not considered "interactive communication." Kan. Att’y Gen. Op. 1995-13. Interactive communication does not occur when a non-member of a body or agency communicates with a majority of that body or agency board and a member responds and shares the response with other members. Further interactive communications among a majority of the members concerning the business of the body where there is an intent to reach agreement on a matter that would require binding action are subject to KOMA. Kan. Att’y Gen. Op. 2009-22.  However, “it is better not to forward the original communication with comments.”  Id.

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c. Text messages

Interactive communication, for the purposes of KOMA, requires a mutual or reciprocal exchange between or among members of a body or agency subject to KOMA. Kan. Att’y Gen. Op. 2009-22.

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d. Instant messaging

Interactive communication, for the purposes of KOMA, requires a mutual or reciprocal exchange between or among members of a body or agency subject to KOMA. Kan. Att’y Gen. Op. 2009-22.

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e. Social media and online discussion boards

Interactive communication, for the purposes of KOMA, requires a mutual or reciprocal exchange between or among members of a body or agency subject to KOMA. Kan. Att’y Gen. Op. 2009-22.

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E. Categories of meetings subject to the law

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1. Regular meetings

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a. Definition

"Any gathering, assembly, telephone call or any other means of interactive communication by a majority of the membership of a body or agency subject to this act for the purpose of discussing the business or affairs of the body or agency." K.S.A. 75-4317a. Telephone calls between county commissioners were not "meetings" under the prior statutes. State Ex Rel. Stephan v. Bd. of Cty. Comm’rs, 254 Kan. 446, 866 P.2d 1024 (1994).

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b. Notice

“Notice of the date, time and place of any regular or special meeting of a public body or agency . . . shall be furnished to any person requesting such notice.”  K.S.A. 75-4318(b).  No other information is required. Notice “must be furnished” to the person or organization requesting it.  Kan. Att’y Gen. Op. 1986-113.  A single notice can suffice for regularly scheduled meetings.  The agency “may” cause the request for notice to expire at the end of the fiscal year.  K.S.A. 75-4318(b)(3).  However, the “public body or agency must notify the person that notice will be discontinued unless the person resubmits a request to receive notice.”  Id.

Notice must be given to "[a]ny person requesting" it. K.S.A. 75-4318(b).  Such notice is to be delivered regardless of residency of the requester.  Kan. Att’y Gen. Op. 81-137.  The public agency cannot charge a fee for giving notice.  Kan. Att’y Gen. Ops. 82-141 and 81-137.  Notice furnished to an executive officer of an employee's organization or trade association is deemed notice to the entire membership, K.S.A. 75-4318(b)(2). Publication of notice in Kansas Register is adequate notice to those persons subscribing to that publication. Kan. Att’y Gen. Op. 1982-141. An appropriate notice under the circumstances regarding legislative conference committee meeting must be given to any person requesting a notice. Kan. Att’y Gen. Op. 1993-113.

The “form of a request for notice and the notice provided can be either oral or written, whatever is reasonable under the circumstances, and that there is no time limit for providing the notice required by the KOMA.” Kan. Att’y Gen. Op. 1996-14 (citing opinions 86-133, 83-173, 81-22 and 81-15).  “KOMA requires that actual notice be provided to requestors of such notice. Actual notice has been defined as ‘notice expressly given and actually given, and brought home to the party directly.’ Black's Law Dictionary 957 (5th ed. 1979).”  Id.

The Act does not require an agenda be prepared, but if one is prepared, it must be available to those requesting. K.S.A. 75-4318(d); Stevens v. City of Hutchinson, 11 Kan. App. 2d 290, 726 P.2d 279 (1986); Kan. Att’y Gen. Op. 1978-281; Kan. Att’y Gen. Op. 1977-337.  Notice requirements are met by making agendas available at city building during business hours and by mailing copies to those requesting them. Kan. Att’y Gen. Op. 1979-218. Does not have to be mailed if available at public place. Kan. Att’y Gen. Op. 1986-113. An agenda may be amended during a meeting unless there is a statute or rule prohibiting amendment. Unified Sch. Dist. No. 407 v. Fisk, 232 Kan. 820 (1983).

Intentional violation of notice requirements subjects the violator to a possible civil penalty of not more than $500.  K.S.A. 75-4320(a) (“Any member of a public body or agency subject to the open meetings act who . . . intentionally fails to furnish information as required by K.S.A. 75-4318(b), and amendments thereto, shall be liable for the payment of a civil penalty in an action brought by the attorney general or county or district attorney, in a sum set by the court of not to exceed $500 for each violation.”).  Any binding action taken at any such meeting held in violation of the provisions of the Act is voidable. K.S.A. 75-4320(a).

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c. Minutes

Minutes are only required by KOMA when the body makes a motion to recess into executive session.  K.S.A. 75-4319(a).  “Minutes setting forth other matters discussed at a meeting are not dictated or required by the Kansas open meetings act. In the absence of statutory directives, a city governing body is not required to record specific information in the minutes of special or regular meetings.”  Kan. Att’y Gen. Op. 1990-47.  However, minutes may be required by ordinances or other policy to which the body is subject.

Minutes are public record under KORA. K.S.A. 45-215 et. seq. A body is not required to disclose drafts of minutes before a vote to approve such minutes unless the draft was publicly cited or identified in an open meeting or in the agenda of an open meeting; once cited or identified, draft minutes open. Kan. Att’y Gen. Op. 2013-5.

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2. Special or emergency meetings

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a. Definition

None given by law.

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b. Notice requirements

“[N]otice of special meetings must be provided separately prior to each special meeting.”  Kan. Att’y Gen. Op. 83-173.  Otherwise, the requirements for notice are the same for both special and regular meetings.  See section (E)(1)(b), “Notice.”

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c. Minutes

Not specifically addressed with respect to special meetings.  The requirements for minutes are the same for both special and regular meetings.  See section (E)(1)(c), “Minutes.”

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3. Closed meetings or executive sessions

In 2017, the KOMA provision related to executive session was amended so that a governing body may recess into executive session only after making a motion, which is seconded, containing (1) [a] statement describing the subjects to be discussed during the closed or executive meeting; (2) the justification listed in subsection (b) for closing the meeting; and (3) the time and place at which the open meeting shall resume.  K.S.A. 75-4319(a). In Kansas Attorney General Opinion 2018-1, the Attorney General addressed what constituted a “statement describing the subjects to be discussed.”  That office found that:

“[A] public body or agency must do more than provide a generic or vague summary, or a list of the subject(s) to be discussed. However, the KOMA does not require that the statement describing what will be discussed to be so detailed that it negates the usefulness of a closed or executive meeting. The determination of whether a motion to recess into a closed or executive meeting sufficiently describes the subject(s) to be discussed in a specific situation is a fact sensitive question which must be determined on a case-by-case basis.”

Kan. Att’y Gen. Op. 2018-1.

“Justification” refers to one of the topics identified in K.S.A. 2017 Supp. 75-4319(b) such as, for example, personnel matters of nonelected personnel.  Kan. Att’y Gen. Op. 2018-1.  A total of 15 justifications are available to the agency under K.S.A. 75-4319(b). 

The time and place the meeting shall resume “may not stretch across multiple days,” and “a closed or executive meeting must be held contemporaneously with an open meeting.”  Kan. Att’y Gen. Op. 2017-20.

A motion to recess into executive session helps assure the public that the executive session is permissible and in the public interest, and it may also remind the members of the public body of the limitations upon and purpose served by executive session discussion.  See Kan. Att’y Gen. Op. 91-78.

“No binding action shall be taken during closed or executive recesses, and such recesses shall not be used as a subterfuge to defeat the purposes of this act.”  K.S.A. 75-4319(c); see also Kan. Att’y Gen. Op. 91-31. However, members of a body may reach a consensus in executive session. O'Hair Bd. of Educ. v. Unified Sch. Dist. No. 300, 15 Kan. App. 2d 52, HN 10, 805 P.2d 40 (1990).  A “consensus” may constitute binding action and violate KOMA if a body fails to follow up with a formal open vote on a decision that would normally require a vote. City of Topeka v. Watertower Place Dev. Grp., 265 Kan. 148 (1998).

A public agency may permit individuals who will assist with discussion in an executive session. However, "mere observers" cannot attend executive sessions. Kan. Att’y Gen. Op. 1992-56.

Executive session review of a public record by an entity subject to the Kansas Open Meetings Act (KOMA) does not alter the nature of or laws applicable to disclosure of that record.  Kan. Att’y Gen. Op. 95-119.

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a. Definition

Although there is no provision in KOMA defining its terms, the Attorney General’s Office has recently defined and differentiated between the terms “recess” and “adjourn” in the context of entering into executive session.  Kan. Att’y Gen. Op. 2017-20.  There, the Attorney General opined that “[t]he term “recess,” as used in K.S.A. 2017 Supp. 75-4319(a), means a suspension of an open meeting. The term “adjourn,” as used in K.S.A. 2017 Supp. 75-4319(a), means ending an open meeting. A public body or public agency may only recess an open meeting to enter into a closed or executive meeting if the closed or executive meeting occurs contemporaneously with the open meeting. A public body or public agency has the discretion to designate the location of a closed or executive meeting if the location of the closed or executive meeting allows the public body or public agency to conduct the closed or executive meeting contemporaneously with the open meeting.”  See also Kan. Att’y Gen. Op. 1996-14. Likewise, although KOMA does not define a “statement describing the subjects to be discussed,” the Attorney General has recently opined that:

“[A] public body or agency must do more than provide a generic or vague summary, or a list of the subject(s) to be discussed. However, the KOMA does not require that the statement describing what will be discussed to be so detailed that it negates the usefulness of a closed or executive meeting. The determination of whether a motion to recess into a closed or executive meeting sufficiently describes the subject(s) to be discussed in a specific situation is a fact-sensitive question which must be determined on a case-by-case basis.”

Kan. Att’y Gen. Op. 2018-1.

The “justifications” for recessing into executing session are expressly defined in the statute.  Proper justifications for recess include personnel matters of non-elected officials, privileged attorney-client matters, employer-employee negotiations, confidential financial or trade secrets, student disciplinary matters, preliminary discussions of real estate acquisitions, security of public buildings and personnel, and tribal-gaming compacts, security measures and records regarding child care facilities, maternity care and family daycare facilities.  K.S.A. 75-4319(b).

A motion to recess into a closed or executive meeting may only utilize one justification as listed in K.S.A. 2017 Supp. 75-4319(b), but multiple subjects may be discussed if those subjects fall within the justification stated in the motion to recess into a closed or executive meeting.  Kan. Att’y Gen. Op. 2018-1.

Only the members of a public body have the right to attend executive session. Kan. Att’y Gen. Ops. 87-170 (county clerk does not have right to attend); 86-143 (members of advisory boards do not have right to attend).  Mere observers may not attend. Inclusion of general observers means the meeting should be open to all members of the public. Kan. Att’y Gen. Ops. 92-56; 86-143; 82-176.  However, persons who aid the public body in their discussions may be admitted to the executive session. Kan. Att’y Gen. Ops. 91-31; 82-176; 80-43.

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b. Notice requirements

Notice to recess into executive session is only required to the extent that a motion for such recess shall be made and recorded in the minutes under K.S.A. 75-4319(a).

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c. Minutes

K.S.A. 75-4319(a) requires that “[t]he complete motion shall be recorded in the minutes of the meeting and shall be maintained as a part of the permanent records of the public body or agency.”  A recent Attorney General Opinion provides that “[a] motion to recess into a closed or executive meeting must be recorded in its entirety in the minutes of the public body or agency. The recording of the motion is not “complete” if it merely summarizes the actual motion in a manner that addresses only the three statutory elements but omits other content of the motion as it was in fact made.”  Kan. Att’y Gen. Op. 2018-1.

KOMA does not require that the information discussed during executive session be recorded in minutes or otherwise.  Kan. Att’y Gen. Op. 90-47.  If the body chooses to take minutes of or otherwise record the executive session, such recordings are not open for public inspection unless and until cited in open session.  K.S.A. 45-221(a)(20).

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d. Requirement to meet in public before closing meeting

The body cannot recess into executive session until after making a motion to do so under K.S.A. 75-4319(a); Kan. Att’y Gen. Op. 81-22.  The statute also requires that minutes reflect the reason for closing the meeting, the subjects to be discussed during the closed meeting, and the time and place that the open meeting will resume; it implies that an open meeting must be held prior to recessing for a closed meeting. Kan. Att’y Gen. Op. 1986-33.

The Kansas Bioscience Authority has authority to close an open meeting for the purpose of having an executive session to discuss or consider marketing or operational strategies even absent a “contract for” such topics if it finds that disclosure of such information would be harmful to its competitive position. Kan. Att’y Gen. Op. 2011-23.

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e. Requirement to state statutory authority for closing meetings before closure

The Attorney General has recently opined that:

“[A] public body or agency must do more than provide a generic or vague summary, or a list of the subject(s) to be discussed. However, the KOMA does not require that the statement describing what will be discussed to be so detailed that it negates the usefulness of a closed or executive meeting. The determination of whether a motion to recess into a closed or executive meeting sufficiently describes the subject(s) to be discussed in a specific situation is a fact-sensitive question which must be determined on a case-by-case basis.”

Kan. Att’y Gen. Op. 2018-1.

The justification for closing the meeting must be stated in the minutes. K.S.A. 75-4319(a); K.S.A. 75-4319(b).  These justifications provide the body’s primary avenue to avoid public discussion of public business and are set forth in K.S.A. 75-4319(b)(1) through (15).  Some of the most common justifications are:

(i) Personnel matters of non-elected personnel         

The justification “Personnel matters of non-elected personnel” appears in K.S.A. 75-4319(b)(1).  The purpose of the exception is to protect the privacy interests of employees, save personal reputations, and encourage qualified people to remain in government employ. State of Kansas v. Bd. of Educ., et al., 13 Kan. App. 2d 117, 119 (1988).  “Personnel” refers to employees of the public agency, not persons appointed to boards or committees. Kan. Att’y Gen. Op. 87-10. “Personnel” also does not include independent contractors, public officers such as workers compensation administrative law judges, workers compensation appeals board members and employment security board of review members. See Kan. Att’y Gen. Ops. 2002-28, 87-169 and 16-3.

The justification may be used to discuss applicants for employment in executive session. Kan. Att’y Gen. Op. 96-61.  The justification may not be used to recess into executive session to discuss groups, and discussions of consolidation of departments or overall salary structure are not proper topics for discussion under this exception.  See Kan. Att’y Gen. Op. 88-25 (“Discussions concerning consolidation of departments and the addition or elimination of job functions or positions may not be held in executive session under the "personnel matters" exception.”).  See also Kan. Att’y Gen. Ops. 81-39 and 80-102. But see State v. Bd. of Educ., 13 Kan. App. 2d 117 (discussion of exempt and nonexempt topics in executive session; separation burdensome and impractical, if not impossible). It also may not be used to discuss policy matters.  Kan. Att’y Gen. Op. 2009-21 (employee evaluation may take place in executive session; employee’s implementation of policy or directive may be discussed, but not policy or directive itself).

(ii) Consultation with the public body’s attorney that would be deemed privileged in the attorney-client relationship.

This justification appears in K.S.A. 75-4319(b)(2); see also K.S.A. 60-426 (lawyer-client privilege); Pickering v. Hollabaugh, 194 Kan. 804 (1965).  In order to invoke this justification, all elements of attorney-client privilege must be present:

1) The body’s attorney must be present,

2) The communication must be privileged, and

3) No other third parties may be present. See Kan. Att’y Gen. Ops. 92-56; 82-247; 82-176; 82-130; 78-303.

“The ‘consultation with an attorney’ exception to the open meetings law cannot be invoked unless the attorney for the body is present.”  Kan. Att’y Gen. Op. 86-162.

“[S]tatements made during executive sessions were not privileged from discovery.”  Hinsdale v. City of Liberal, 981 F. Supp. 1378, 1378 (1997).

(iii). Employer-employee negotiations.

Contained in K.S.A. 75-4319(b)(3), this justification allows for recess to discuss conduct or status of negotiations, with or without the authorized representative who is actually doing the bargaining. See Kan. Att’y Gen. Op. 79-125.  This justification cannot be used to meet with employees. Kan. Att’y Gen. Op. 80-43.  School boards have special rules for professional negotiations. See K.S.A. 72-5423(c); Kan. Att’y Gen. Op. 92-51.

(iv). Confidential data relating to financial affairs or trade secrets of corporations, partnerships, trusts, and individual proprietorship.

Appearing in K.S.A. 2016 Supp. 75-4319(b)(4), this justification is available “only when the topic of conversation clearly involves confidential financial data, or ‘trade secrets’ as that term has been defined by Kansas courts.”  Kan. Att’y Gen. Op. 88-148.  “When in doubt, members of the Commission should remember that exceptions to the open meetings law are interpreted narrowly.”  Id.  Only applies to discussions related to data that is truly confidential in nature. See K.S.A. 60-3320(4); Sw. Bell Tel. Co. v. State Corp. Comm’n, 6 Kan. App. 2d 444, 457 (1980), rev. den. 230 Kan. 819 (1981); All West Pet Supply v. Hill’s Pet Products, 840 F. Supp. 1433, 1437 (Kan. 1993).

Statutes outside of KORA can provide additional bases to recess into executive sessions.  See K.S.A. 74-99b07(c); Kan. Att’y Gen. Op. 2011-23.

(v). Matters affecting a student, patient, or resident of public institutions.

Appearing in K.S.A. 75-4319(b)(5), this justification can be invoked if the matter affects a particular individual, not students, patients, or residents in general.  Inmates are considered “residents” under the statute.  Kan. Att’y Gen. Op. 80-102. “A general discussion of quality of care and staffing issues would not be allowed in an executive session unless the topic concerned an individual staff member, patient or another subject closed by statute.”  Kan. Att’y Gen. Op. 2008-22; see also Kan. Att’y Gen. Op. 89-22 (discussing hospital peer review and risk management reports).

A hearing on the matters must be open, and the body cannot recess into executive session under this justification, if requested by person involved.  K.S.A. 75-4319(b)(5).

(vi). Preliminary discussions relating to acquisition of real property.

This justification appears in K.S.A. 75-4319(b)(6).  “[D]iscussions concerning the acquisition of real property by a public body may take place in a closed meeting. Therefore, discussions relating to the sale of real property owned by a public body must be held in an open meeting.”  Kan. Att’y Gen. Op. 87-91.  This exception can be used only when the primary focus of the discussion is real property; negotiating strategy alone is insufficient. Kan. Att’y Gen. Op. 89-92.

(vii). Other subjects may be discussed in closed or executive meeting pursuant to specific statutes.

See, e.g., K.S.A. 2016 Supp. 75-4319(b)(7) [racing and gaming]; (b)(8) [abuse and neglect]; (b)(9) [child death review board]; (b)(11) [Medicaid drug utilization board] (b)(12) [tribal-state gaming compacts]; (b)(13)[security measures, if open discussion would jeopardize security] (b)(14) [records on matters related to child care facilities or maternity centers]; (b)(15) [KHPA and inspector general discussion of investigations and audits].

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f. Tape recording requirements

None.

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F. Recording/broadcast of meetings

There is no requirement that a public agency broadcast its meetings. However, as to observers, “[t]he use of cameras, photographic lights and recording devices shall not be prohibited at any meeting.”  K.S.A. 75-4318(e).  However, “such use shall be subject to reasonable rules designed to insure the orderly conduct of the proceedings at such meeting.”  Id.

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1. Sound recordings allowed

Under K.S.A. 75-4318(e), the use of recording devices is permitted subject to reasonable rules to ensure the orderly conduct of the proceedings at such meeting.

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2. Photographic recordings allowed

Under K.S.A. 75-4318(e), the use of cameras is permitted subject to reasonable rules to ensure the orderly conduct of the proceedings at such meeting.

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G. Access to meeting materials, reports and agendas

“[A]ny agenda relating to the business to be transacted . . . shall be made available to any person requesting the agenda.”  K.S.A. 75-4318(d).  The body “must list those topics on any agenda prepared, if known at the time of preparation.” Stevens v. City of Hutchinson, 11 Kan. App. 2d 290, 293 726 P.2d 279 (1986); see also Kan. Att’y Gen. Op. 1978-281; Kan. Att’y Gen. Op. 1977-337.

Under the Kansas Open Records Act, draft minutes of a county commission meeting are "preliminary drafts" that would fall within the exception in K.S.A. 45-221(a)(20), and the board of county commissioners is not required to disclose them to the public prior to being formally approved by the board unless the draft minutes are publicly cited or identified either in an open meeting, or in an agenda of an open meeting. Kan. Att’y Gen. Op. 2013-5.

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H. Are there sanctions for noncompliance?

Any member who knowingly violates this Act is liable in an amount not to exceed $500 and any action taken is voidable. K.S.A. 75-4320.  Action to void must be brought within 21 days.  K.S.A. 75-4320(a).  However, only the attorney general or county/district attorney have standing to seek voidance.  K.S.A. 75-4320; Stoldt v. City of Toronto, 234 Kan. 957, ¶ 1 (1984); Krider v. Bd. of Trustees, 277 Kan. 244 (2004); see also Mid-Continent Specialists, Inc. v. Capital Homes, L.C., 279 Kan. 178 (2005).

“The willful neglect of duty by a member of a governing body in failing to perform those duties imposed by the Kansas Open Meetings Act may constitute grounds for ouster pursuant to K.S.A. 60-1205.”  Kan. Att’y Gen. Op. 80-168.

KOMA violations may also be sufficient for recall of elected officials.  Collins v. Hoeme, 40 Kan. App.2d 93, 189 P. 3d 566 (2008).

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II. Exemptions and other legal limitations

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A. Exemptions in the open meetings statute

Under K.S.A. 75-4318(g), KOMA does not apply to the following:

(1)  any administrative body that is authorized by law to exercise quasi-judicial functions when such body is deliberating matters relating to a decision involving such quasi-judicial functions;

(2)  the prisoner review board when conducting parole hearings or parole violation hearings held at a correctional institution;

(3)  any impeachment inquiry or other impeachment matter referred to any committee of the house of representatives prior to the report of such committee to the full house of representatives.

KOMA also does not apply if expressly exempted “by state or federal law or by rules of the Kansas senate or house of representatives.”  K.S.A. 75-4318(g)(4).

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1. Character of exemptions

Specific exemptions. Mandatory, not discretionary closure. See K.S.A. 75-4318(g).

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2. Description of each exemption

Under K.S.A. 75-4318(g), KOMA does not apply to the following:

(1)  any administrative body that is authorized by law to exercise quasi-judicial functions when such body is deliberating matters relating to a decision involving such quasi-judicial functions;

(2)  the prisoner review board when conducting parole hearings or parole violation hearings held at a correctional institution;

(3)  any impeachment inquiry or other impeachment matter referred to any committee of the house of representatives prior to the report of such committee to the full house of representatives.

KOMA also does not apply if expressly exempted “by state or federal law or by rules of the Kansas senate or house of representatives.”  K.S.A. 75-4318(g)(4).

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B. Any other statutory requirements for closed or open meetings

Public bodies may recess into executive session to conduct deliberations out of public view.  See “Requirement to state statutory authority for closing meetings before closure” above.

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C. Court mandated opening, closing

No court mandated opening, closing.

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III. Meeting categories - open or closed

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A. Adjudications by administrative bodies

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1. Deliberations closed, but not fact-finding

All stages of the decision making process are subject to the Act. Coggins v. Pub. Emp. Relations Bd., 2 Kan. App. 2d 416, 581 P.2d 817 (1978); Kan. Att’y Gen. Op. 1980-197.  Deliberations by administrative bodies that are authorized by law to exercise quasi-judicial functions when such bodies are deliberating matters relating to a decision involving such quasi-judicial functions are not open.  K.S.A. 75-4318(g)(1).

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2. Only certain adjudications closed, i.e. under certain statutes

Quasi-judicial deliberations are closed. K.S.A. 75-4318(g)(1).

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B. Budget sessions

Open to the public.  Kan. Att’y Gen. Op. 1981-39 (“[G]overning bodies subject to the Kansas Open Meetings Act may not discuss salary schedules for hospital personnel, hospital budgets, hospital room rates, or other related financial affairs during closed or executive session.”).

The consensus estimating group, which makes recommendations to the legislative budget committee, is an independent group with no statutory authority or duties in the exercise of its functions. The group is not under the guidance of any state agency and does not receive any public funds. Therefore, such group is not subject to KOMA. Kan. Att’y Gen. Op. 1994-93.

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C. Business and industry relations

Not addressed by Kansas law.

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D. Federal programs

Not addressed by Kansas law.

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E. Financial data of public bodies

Open to the public. Kan. Att’y Gen. Op. 1981-39.

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F. Financial data, trade secrets, or proprietary data of private corporations and individuals

May be discussed in closed session. K.S.A. 75-4319(b)(4).  See “Requirement to state statutory authority for closing meetings before closure” above.

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G. Gifts, trusts and honorary degrees

Not addressed by Kansas law.

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H. Grand jury testimony by public employees

Closed unless directed otherwise by the court. K.S.A. 22-3012.

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I. Licensing examinations

Although not addressed in KOMA, a state professional licensing board may exempt portions of their licensing proceedings from the law by statute.  See, e.g., K.S.A. 65-4925 (health care provider disciplinary proceedings).  Specific statutes governing a particular body supersede KOMA.  See Kan. Att’y Gen. Op. 92-51.

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J. Litigation, pending litigation or other attorney-client privileges

Attorney-client consultations may be closed. K.S.A. 75-4319(b)(2). An attorney must be present. Kan. Att’y Gen. Ops. 1978-303, 1986-162. The privilege may not be invoked if third parties are present during the communication. Kan. Att’y Gen. Ops. 1982-247, 1992-56. A city cannot take binding action on a settlement agreement during a closed or executive session. Kan. Att’y Gen. Op. 1993-55.  See “Requirement to state statutory authority for closing meetings before closure”  above.

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K. Negotiations and collective bargaining of public employees

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1. Any sessions regarding collective bargaining

Collective bargaining may be discussed in a closed or executive meeting. K.S.A. 75-4319(b)(3); Kan. Att’y Gen. Op. 1992-51.

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2. Only those between the public employees and the public body

These can be closed “whether or not” they are in consultation with the body or agency. K.S.A. 75-4319(b)(3).

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L. Parole board meetings, or meetings involving parole board decisions

“The provisions of the open meetings law shall not apply . . . to the prisoner review board when conducting parole hearings or parole violation hearings held at a correctional institution.”  K.S.A. 75-4318(g)(2).

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M. Patients, discussions on individual patients

A public body may recess into executive session “to discuss matters relating to actions adversely or favorably affecting a person as a . . . patient or resident of a public institution, except that any such person shall have the right to a public hearing if requested by the person.”  K.S.A. 75-4318(b)(5); see “Requirement to state statutory authority for closing meetings before closure” above.

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N. Personnel matters

These may be closed to the public. K.S.A. 75-4319(b)(1).  “Public bodies subject to the Kansas open meetings act may go into executive session to interview, discuss, and consider applicants or prospective employees of that body under the personnel matters exception to the act.” Kan. Att’y Gen. Op. 96-61.  That opinion also notes that “[b]inding action” such as making hiring decisions “may not be taken in executive session.”  Id.

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1. Interviews for public employment

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2. Disciplinary matters, performance or ethics of public employees

These may be closed to the public. K.S.A. 75-4319(b)(1); Kan. Att’y Gen. Ops. 1975-203, 1992-51. The purpose of the "personnel matters" exception within K.S.A. 75-4319(b)(1) is to protect privacy rights of employees, to save personal reputations, and encourage qualified people to seek governmental employment. Walker v. Bd. of Educ., 21 Kan. App. 2d 341, 900 P.2d 850 (1995); see above, “Requirement to state statutory authority for closing meetings before closure.”

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3. Dismissal, considering dismissal of public employees

A public body may recess into executive session to discuss dismissal of individual employees. K.S.A. 75-4319(b)(1); see above, “Requirement to state statutory authority for closing meetings before closure.”

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O. Real estate negotiations

A public body may recess into executive session to have preliminary discussions relating to acquisitions of public land. K.S.A. 75-4319(b)(6);  Kan. Att’y Gen. Ops. 1987-91; 1975-203. Discussion relating to the sale of public land are open to the public.  Kan. Att’y Gen. Op. 1987-91.  A private corporation supporting "the well-planned development of land along Kansas Highway 10" is not a public agency within the meaning of KOMA due to the lack of governmental control and influence. Kan. Att’y Gen. Op. 1994-42.  Also see above, “Requirement to state statutory authority for closing meetings before closure.”

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P. Security, national and/or state, of buildings, personnel or other

A public body may recess into executive session to discuss:

“[M]atters relating to security measures, if the discussion of such matters at an open meeting would jeopardize such security measures, that protect: (A) Systems, facilities or equipment used in the production, transmission or distribution of energy, water or communications services; (B) transportation and sewer or wastewater treatment systems, facilities or equipment; (C) a public body or agency, public building or facility or the information system of a public body or agency; or (D) private property or persons, if the matter is submitted to the public body or agency for purposes of this paragraph. For purposes of this paragraph, security means measures that protect against criminal acts intended to intimidate or coerce the civilian population, influence government policy by intimidation or coercion or to affect the operation of government by disruption of public services, mass destruction, assassination or kidnapping. Security measures include, but are not limited to, intelligence information, tactical plans, resource deployment and vulnerability assessments.”

K.S.A. 75-4319(b)(12).

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Q. Students, discussions on individual students

A public body may recess into executive session “to discuss matters relating to actions adversely or favorably affecting a person as a student . . ., except that any such person shall have the right to a public hearing if requested by the person.”  K.S.A. 75-4319(b)(5).

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IV. Procedure for asserting right of access

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A. When to challenge

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1. Does the law provide expedited procedure for reviewing request to attend upcoming meetings?

Meetings must be reasonably accessible to the public; as such, an observer’s ability to attend is presumed. Although no express procedure is set forth in the statute, injunction or mandamus are available under K.S.A. 75-4320a if a request to attend were denied.

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2. When barred from attending

Any member of a public body or agency subject to the open meetings act who knowingly violates any of the provisions of such act by barring access “shall be liable for the payment of a civil penalty in an action brought by the attorney general or county or district attorney, in a sum set by the court of not to exceed $500 for each violation.”  K.S.A. 75-4320.  Private persons barred from meetings may bring actions for “injunction, mandamus, declaratory judgment or other appropriate order.”  K.S.A. 75-4320a.  A demand to comply with the KOMA is never too late and can be made seconds before the meeting is held, unless the issue is notice of the meeting. K.S.A. 75-4318 requires that notice of a meeting be requested before it is required to be given. (Note that other organizational statutes and ordinances require notice of meetings to be published without interconnection to KOMA.)

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3. To set aside decision

Binding action taken in a meeting that violates the open meetings act is voidable in an action brought by a county attorney, district attorney or attorney general within 21 days of the meeting. K.S.A. 75-4320.

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4. For ruling on future meetings

Not specifically addressed under KOMA. Perceived determination of the reporter or other person seeking access is essential to maintain the body’s focus on compliance. Officials sometimes respond to ideological arguments for openness.

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5. Other

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B. How to start

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1. Where to ask for ruling

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a. Administrative forum

No provision.

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b. State attorney general

The attorney general or county and district attorneys have exclusive power to seek penalties or to void actions. K.S.A. 75-4320.  In 2015, the investigative powers vested in those offices to enforce KOMA violations were strengthened.  See K.S.A. 75-4320b.

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c. Court

In a lawsuit brought by a private plaintiff, jurisdiction to enforce the purposes of the KOMA is vested in the district court in the county in which the meeting was held. K.S.A. 75-4320a(a).  “Except as otherwise provided by law, proceedings arising under this section shall take precedence over all other cases and shall be assigned for hearing and trial at the earliest practicable date.”  K.S.A. 75-4320a(f).  “[T]he burden of proof shall be on the public body or agency to sustain its action.”  K.S.A. 75-4320a(b).  Court costs, but not attorney fees, are to be awarded to the plaintiff “if the court finds that the provisions of those statutes were violated.”  K.S.A. 75-4320a(c).  Meanwhile, “the court may award to the defendant court costs if the court finds that the plaintiff maintained the action frivolously, not in good faith or without a reasonable basis in fact or law.”  K.S.A. 75-4320a(d).  Attorney fees are only awarded in actions brought by the county or district attorney, or the attorney general.  See K.S.A. 75-4320a(e).

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2. Applicable time limits

K.S.A. 60-512 provides a three-year statute of limitations for "liability created by statute." Binding action taken in a meeting that violates the open meetings act is voidable in an action brought by a district attorney or the attorney general within 21 days of the meeting. K.S.A. 75-4320.

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3. Contents of request for ruling

No provision.

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4. How long should you wait for a response

No provision.

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5. Are subsequent or concurrent measures (formal or informal) available?

No provision.

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C. Court review of administrative decision

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1. Who may sue?

The attorney general or county and district attorneys have exclusive power to seek penalties or to void actions. K.S.A. 75-4320. Otherwise, "any person" may sue. K.S.A. 75-4320a.

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2. Will the court give priority to the pleading?

Yes. K.S.A. 75-4320a(f) provides that action shall take precedence over all other cases except as otherwise provided by law.

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3. Pro se possibility, advisability

A person may proceed pro se, and there is no provision for a private plaintiff to recover attorney fees.

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4. What issues will the court address?

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a. Open the meeting

Injunctive relief is available under K.S.A. 75-4320a.

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b. Invalidate the decision

Injunctive relief is available under. K.S.A. 75-4320a.  But only a county or district attorney, or the attorney general, can void an action within 21 days under K.S.A. 75-4320(a).

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c. Order future meetings open

Injunctive relief is available under K.S.A. 75-4320a.

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5. Pleading format

No provisions. Action governed by K.S.A. Chapter 60.

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6. Time limit for filing suit

KOMA contains no period of limitations.  The statute of limitations for “[a]n action upon a liability created by a statute other than a penalty or forfeiture” is three years under K.S.A. 60-512(2). Binding action taken in a meeting that violates the open meetings act is voidable in an action brought by district attorney or attorney general within 21 days of the meeting. K.S.A. 75-4320.

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7. What court?

An action must be brought in the district court of the county "in which meeting is held." K.S.A. 75-4320a(a). K.S.A. 60-512 provides a three-year statute of limitations for "liability created by statute."

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8. Judicial remedies available

Injunction, mandamus or other appropriate order under K.S.A. 75-4320a(a); civil penalties and injunction or mandamus under K.S.A. 75-4320(a).

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9. Availability of court costs and attorney's fees

Costs available under 75-4320a(c). No provision for attorney fees.

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10. Fines

Up to $500 per violation under K.S.A. 75-4320(a).

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11. Other penalties

“The district court may require a defendant to complete training approved by the attorney general concerning the requirements of the open meetings act.”  K.S.A. 75-4320a(a).

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D. Appealing initial court decisions

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1. Appeal routes

Appeal is to the Kansas Court of Appeals, then upon application for review (discretionary) to the Kansas Supreme Court. K.S.A. 60-2101.

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2. Time limits for filing appeals

Thirty days from final judgment. K.S.A. 60-2101(d).

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3. Contact of interested amici

Amicus briefs are allowed on application only. Sup. Ct. Rule 8.06. Amici are not permitted oral argument.

The Reporters Committee for Freedom of the Press often files amicus briefs in cases involving significant media law issues before a state's highest court.

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V. Asserting a right to comment

There is no statutory right to comment. Public bodies may adopt their own rules for public comment and may disallow public comment altogether.

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A. Is there a right to participate in public meetings?

There is no statutory right to comment.

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B. Must a commenter give notice of intentions to comment?

There is no statutory right to comment.

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C. Can a public body limit comment?

There is no statutory right to comment.

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D. How can a participant assert rights to comment?

There is no statutory right to comment.

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E. Are there sanctions for unapproved comment?

There is no statutory right to comment.

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Appendix

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