Mary Feighny, Judge.
"Information is the oxygen of democracy. If people do not know what is happening in their society, if the actions of those who rule them are hidden, then they cannot take a meaningful part in the affairs of that society"1
The Kansas Open Records Act2 (KORA) imposes a duty on the state, its agencies and local government to make public records available unless a disclosure exception applies.3 This article will serve as a primer for public agency attorneys, private attorneys seeking access to records on behalf of their clients, and for seasoned KORA attorneys, an update on recent cases and legislative changes. For the genesis and history of this thirty-four year old law, the author recommends Theresa Schwartz's seminal Journal article.4
The Kansas appellate courts have been unwavering in applying a liberal construction to the legislature's edict that public records are generally open for inspection.5 Disclosure exceptions are always narrowly interpreted and the burden of proving an exception is on the agency6 The availability of records from other sources never excuses production.7 However, KORA does not require public agencies to create records or compile information.8
What is a public record
KORA identifies what is and what is not a public record. A "public record" is "any recorded information, regardless of form, characteristics or location, which is made, maintained or kept by or is in the possession of: (1) any public agency; and (2) 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"9 This definition captures not only paper records,10 but also computer data, including emails.11 It also includes court records12 and records provided to a public agency by a third party13
What is not a public record
A “public record” does not include: (1) records owned by a private person or entity that are not related to functions, activities, programs or operations funded by public funds;14 (2) records made, maintained or kept by a state legislator or a member of a governing body of a political/taxing subdivision of the state; and (3) records identifying employers’ individually identifiable contributions for workers compensation, social security, unemployment insurance or retirement.
What is a public agency
Similar to the definition of a public record, KORA identifies what is and what is not a public agency. A “public agency” is: (1) “the state or any political or taxing subdivision of the state17 or any office, agency or instrumentality;18 and (2) any other entity receiving or expending and supported in whole or in part by [public funds].”19
What is not a public agency
A “public agency” does not include: (1) “any entity solely by reason of payment from public funds for property, goods or services;”20 and (2) judges at the municipal, district court and appellate levels.
The affirmative definition of a “public agency” (i.e. state and local government) is more easily understood than the ambiguous provision excluding entities receiving public funds. The Kansas Attorney General has issued several opinions on the subject of when a private entity falls within KORA’s grasp—the conclusions of which vary depending on the facts but generally turn upon (1) the extent of the public funding; (2) whether the funds are for services traditionally provided by government; and (3) whether the entity was created by a governmental entity or statute.21
The most recent case exploring this conundrum is State v. Great Plains of Kiowa Cty., Inc.22 where a panel of the Kansas Court of Appeals concluded that financial records held by a private entity operating a county hospital are public records.
Great Plains of Kiowa County (GPKC), a non-profit company established solely to operate the Kiowa County Memorial Hospital, leased the hospital from the hospital board of trustees. GPKC’s operation was funded, in part, by a county mill levy that provided about 20% of GPKC’s revenue—the rest being provided by federal grants and patient billings. When the county commissioners requested copies of vouchers for payment of professional and management fees and documents related to executive salaries, GPKC demurred on the basis that it was not a ‘public agency’ simply by virtue of its having received county funds, citing K.S.A. 45-217(f) (2)(A) (‘public agency’ not an ‘entity solely by reason of payment from public funds for property, goods or services of such entity.’)
In an action fled by the county to enforce KORA, the district court concluded that the exception did not apply because it is limited only to vendors and not entities providing services directly to the public. In addition to ordering disclosure, the court levied the maximum civil penalty allowed by law—$500.24
A panel of the Kansas Court of Appeals—clearly irked by the hospital board of trustees’ failure to fulfill its statutory requirements to keep financial records open for public inspection25—concurred with the district court and held that GPKC’s operating records are public records. The court’s holding was based upon factors considered by Colorado courts when interpreting Colorado’s Open Records Act which served as a template for KORA.
The Colorado courts focus on a public agency’s involvement with the private entity by weighing the following factors: (1) the level of public funding; (2) whether there has been a commingling of funds; (3) whether the activity was conducted on publicly owned property; (4) whether the services were an integral part of the public agency’s decision-making process; (5) whether the private entity was performing a governmental function or a function which the public agency otherwise could perform; (6) the extent of the public agency’s involvement or control over the private entity; (7) whether the private entity was created by the public agency; (8) whether the public agency has a substantial financial interest in the private entity; and (9) for whose benefit the private entity was functioning.26
Key to the Kansas Court of Appeal’s decision, in addition to the funding, was that GPKC operated a publicly owned hospital and provided services directly to the public. “GPKC has only one function – to operate the Hospital on behalf of the [hospital board]. As far as the record shows GPKC provides no services to any other entity, public or private. The [hospital board] cannot hide its records by delegating the operations to GPKC and violate its statutory duty to maintain adequate financial records pertaining to the operations of the County-created hospital. By assuming the role as the sole operator of the hospital on behalf of the [hospital board], GPKC’s operating records are deemed to be public records.”
As of this writing, the decision is under review by the Kansas Supreme Court28 whose opinion will, hopefully, shed light on the circumstances under which KORA’s reach extends to private entities providing services to the public.
How to request a record; fees
All public agencies are required to adopt record request procedures which generally can be found on the agency’s web site.29 Most agencies provide a request form but any written request is sufficient.30 The agency can require the requestor’s name and address as well as proof of identity.31 If names and addresses of individuals or business entities are requested, the record custodian may require that the requestor execute a certification that the requestor will not use the list to sell property or services or sell the list to a third party who does so.32 Statutory exemptions to the sale prohibition exist.34 Once the certification is received, the custodian must provide the records even if the custodian suspects that the requester may use the list for the prohibited activities.35
The custodian has three options: (1) grant access within three business days;36 (2) inform the requestor that access cannot be granted within three business days but will be available at a later date; and (3) deny the request within three business days.37 It is customary for an agency to provide a reason for denial but it is not required unless requested.38 The ‘three day rule’ does not mean that the records have to be supplied within those three days—only that the agency respond within three business days.39 The attorney general takes the rule seriously and will not hesitate to spank an agency for its cavalier disregard.40
If the records exist41 and are not subject to copyright42 or a disclosure...