72 J. Kan. Bar Assn. 5, 28-42 (2003). Kansas Sunshine Law; How Bright Does It Shine Now?.

AuthorBy Theresa Marcel Nuckolls

Kansas Bar Journals

Volume 72.

72 J. Kan. Bar Assn. 5, 28-42 (2003).

Kansas Sunshine Law; How Bright Does It Shine Now?

Kansas Bar Journal72 J. Kan. Bar Assn. 5, 28-42 (2003)Kansas Sunshine Law; How Bright Does It Shine Now?The Kansas Open Meetings and Open Records ActsBy Theresa Marcel NuckollsI. Introduction

In 1972, the Kansas Legislature enacted The Kansas Open Meetings Act (KOMA).[1] Twelve years later, the Legislature promulgated the Kansas Open Records Act (KORA),[2] replacing the former records law.[3] These types of enactments are often referred to as "sunshine laws" because they are intended to help shed light upon government activity. Over the last thirty years of their cumulative existence both the KORA and the KOMA have undergone extensive legislative tinkering and have been the topic of many court decisions and attorney general opinions.

The purpose of this two-part article is to provide an updated overview of both Acts and a practical guide to those attorneys attempting to determine how to best follow the law or pursue violations.[4] While all laws impacting a specific record or meeting should be considered any time a question as to openness arises,[5] it is the author's hope that this two-part article on the KOMA and the KORA will update the body of commentary currently available,[6] and be of benefit to anyone wanting to obtain a record from a public agency, close a public record, listen to discussions by a public body, or have a private discussion with a public official.

  1. Background

    As with many laws, a firm grasp of the legislative intent and history surrounding the Acts enhances and simplifies interpretation of and compliance with the KORA and the KOMA. Both Acts have as their central theme the overall intent of allowing the general public greater access to the business workings of state and local government.[7] Both Acts strongly favor openness in governmental transactions. However, not every record or meeting is open to the public, and not every entity engaged in government business is subject to the KORA or KOMA.

    Many people (including lawyers) confuse state sunshine laws with the federal Freedom of Information Act (FOIA)[8] and its companion, the Privacy Act,[9] enacted by Congress in 1966 to cover federal actions, agency records and information. The FOIA does not generally apply to the meetings or records of state or local government agencies, nor to private businesses or individuals. However, the FOIA shares with the KORA and KOMA the same historical genesis, the Watergate scandal. Regardless of any personal views on that entire political and legal saga, one of its results was a national move toward opening up government affairs. Although many open meeting laws were enacted prior to Watergate, there is no question that many statutes were afterwards enacted or strengthened "at a time of wide-spread public dismay over the Watergate disclosures of extensive secret corruption and abuse of power at the highest levels of federal government."[10] Federal and local politicians of that era became very sensitive to the public's heightened insistence on obtaining information about what the government was "up to."[11] The result was a national outbreak of new and improved "Sunshine laws." Most states historically recognized a common law public right to access and now have their own statutory counterparts to the federal Freedom of Information Act.[12]

    While the KORA and the KOMA share the same basic purpose and history, and should therefore be read in harmony whenever possible, the definitions and exceptions applicable to each Act are not always identical. The Acts will therefore be addressed separately for purposes of this two-part article.

  2. The KORA

    In view of the impact that the KORA has on the daily operation of most public agencies subject to its terms, it is surprising that the Kansas appellate courts have handed down so few cases directly concerning the KORA. However, these few cases provide helpful guides to how the Act should be interpreted.

    One recent Kansas Supreme Court case dealing with the KORA, Wichita Eagle v. Simmons,[13] has garnered considerable attention, especially from the media. This case overruled the decision of the Kansas Department of Corrections to close certain records concerning inmates, and disagreed with how broadly a specific closure law was interpreted by that agency. However, despite the hyperbolic descriptions of this case as some kind of water-shed, opening up here-to-fore closed records, the Court simply (with some helpful explanations) reiterated what the law and many attorney general opinions plainly say: All public records are presumed open and exceptions allowing closure are narrowly interpreted. Thus, a public agency cannot legally deny access to a public record unless there is an applicable law allowing or requiring closure of the specific record in question.

    The 2000 Kansas Legislature underscored the preference for openness in public records by enacting K.S.A. 45-229.[14] In this statute, law makers reiterated the criteria by which closure laws should be measured "It is the intent of the legislature that exceptions to disclosure under the open records act shall be created or maintained only if: (1) The public record is of a sensitive or personal nature concerning individuals; (2) the public record is necessary for the effective and efficient administration of a governmental program; or (3) the public record affects confidential information."

    This preference for openness in public records remains the starting place of every KORA issue.

    1. Definitions and Application

      When determining whether particular information must be disclosed, the first two issues are always whether a record exists containing that information and, if so, whether it falls under the scope of the KORA. The KORA applies to "public records," which is defined as "any recorded information, regardless of form or characteristics, which is made, maintained or kept by or is in the possession of any public agency including, but not limited to, an agreement in settlement of litigation involving the Kansas public employees retirement system and the investment of moneys of the fund."[15] The Act does not require the creation of a public record in order to respond to a request for information, nor does it apply to records that do not meet the statutory definition of a public record.[16] These are important distinctions that must always be considered in determining whether the KORA rules must be followed.

      Because the KORA applies to "any recorded information regardless of form or characteristics," "public records" are not restricted only to analog or written records.[17] Computer data is a "record."[18] Pictures may be a public record.[19] Thus, in order to determine whether a public record exists, the public agency receiving a request for records or information has a duty to make reasonable inquiries and searches.[20] However, records not yet in existence are not subject to the Act. A prospective or standing request for "records as they become available" is not enforceable.[21] The KORA does not require that a record be created in order to respond to requests or in order to answer questions asking for "information."

      Another preliminary issue under the KORA is whether the entity possessing the record actually qualifies as a public agency subject to that Act. K.S.A. 45-217(e) defines a public agency subject to the KORA as "the state or any political or taxing subdivision of the state or any office, officer, agency or instrumentality thereof, or any other entity receiving or expending and supported in whole or in part by the public funds appropriated by the state or by public funds of any political or taxing subdivision of the state."[22] An entity is not subject to the KORA solely because it receives public funds in exchange for goods or services.[23] Likewise, the KORA does not apply to certain public officials as individuals.[24]

      The KORA definition of a public agency is easily applied to state agencies, and the more common categories of local government entities such as counties, cities, townships, rural water districts and school boards. However, deciding whether the KORA applies to other types of entities often requires a case by case analysis of all the facts concerning the creation, duties, funding, and general authority of the entity in question. Although most private entities are not subject to the KORA, some nonprofit corporations are if they meet certain tests.

      The Kansas Attorney General opined that a not-for-profit corporation providing mental health services was subject to the KORA because there was specific statutory authorization for contracts with such nonprofits and it was performing a traditional government function.[25] Likewise, a nonprofit city hospital was found to be under the KORA because it was authorized by statute and created by a city.[26]

      Other entities that interact with the government have been found to be exempt from KORA application. The Attorney General looked at the NCAA and Wichita State University Endowment Association, and found that neither was subject to KORA, in part because members merely paid dues in exchange for services provided, but also because nongovernment functions were involved.[27]

      In examining a private entity for KORA applicability, the rules and cases from other states generally turn on (1) the extent of public funding, (2) whether there is a specific...

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