The Kansas Open Records Act (KORA) declares it is the public policy of Kansas that “public records shall be open for inspection by any person unless otherwise provided” (KSA 45-216). The burden of proving an exemption from disclosure is on the agency not disclosing the information (SRS v. Public Employee Relations Board, 249 Kan. 163 (1991)).
Who Is Covered by KORA?
KORA applies to those entities considered a “public agency” under the law (KSA 2019 Supp. 45-217).
Included in this definition are:
- The State;
- Any political or taxing subdivision of the State or any office, agency, or instrumentality thereof; and
- Any other entity receiving or expending and supported in whole or in part by public funds that are appropriated by the State or its political and taxing subdivisions.
- The definition covers all state agencies, cities, counties, townships, school districts, and other special district governments, as well as any agencies or instrumentalities of these entities, and officers of the above public entities in connection with their official duties.
In addition, although not included in KORA itself, KSA 2019 Supp. 45-240 requires nonprofit entities, except health care providers, that receive public funds of at least $350 per year to adhere to certain open records requirements. The 2005 Legislature added this provision to require such nonprofit entities to document the receipt and expenditure of public funds and make this information available to the public. Like public agencies, nonprofit entities may charge a reasonable fee to provide this information.
Exclusions from Open Records Requirement
Certain entities and individuals are expressly excluded from the definition of “public agency” (KSA 2019 Supp. 45-217(f)(2)):
- Entities included only because they are property, goods, or services paid for with public funds; and
- Any municipal, district, or appellate judge or justice.
What Is a Public Record?
“Public record” is defined broadly under KORA to mean “any recorded information, regardless of form, characteristics or location, which is made, maintained or kept by or is in the 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” (KSA 2019 Supp. 45-217(g) (1)). Specifically excluded from the definition of “public record” are:
- Records owned by a private person or entity that are not related to functions, activities, programs, or operations funded by public funds, but “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;
- Records kept by individual legislators or members of governing bodies of political and taxing subdivisions; or
- Employers’ records related to certain individually identifiable employee records (KSA 2019 Supp. 45-217(g)(2) and (3)).
The Attorney General opined in 2015 (Op. Atty. Gen. 2015-010) that under certain specific conditions and the law in effect at the time, an email sent by a state employee from his or her private email account related to work funded by public funds is not within the meaning of public record. However, in 2016, the definition of and exclusions from “public record” were amended to broaden the definition of “public record” and apply it more specifically to state officers and employees, regardless of location of the record (KSA 2019 Supp. 45-217 (g)(1)). Additionally, audio and video recordings made and retained by law enforcement using a body camera or vehicle camera were added to the definition of a criminal investigation record (open only under specific circumstances) (KSA 2019 Supp. 45-254).
Right of Public to Inspect and Make or Obtain Copies of Records
All public records are open for inspection unless closed pursuant to specific legal authority (KSA 45-218(a) and (b)). Members of the public have the right to inspect public records during regular office hours and any established additional hours; the agency may require a written request but shall not require a request to be made in a particular form (KSA 2019 Supp. 45-220(a) and (b)). If the agency has business days on which it does not have regular office hours, it must establish reasonable hours when persons may inspect records and may not require a notice of desire to inspect more than 24 hours in advance of the hours established for inspection and obtaining copies; the agency also may not require the notice to be in writing (KSA 2019 Supp. 45-220(d)).
Any person may make abstracts or obtain copies of a public record. If copies cannot be made in the place where the records are kept, the records custodian must allow the use of other copying facilities (KSA 2019 Supp. 45-219(b)). Members of the public cannot remove a record without written permission of the custodian (KSA 45-218(a)).
KSA 2019 Supp. 75-3520 requires any document or record that contains any portion of an individual’s Social Security number be redacted before it is made available for public inspection or copying. This does not apply to documents recorded in the official records of any county recorder of deeds or in the official records of the courts. An agency also is required to give notice, offer credit monitoring service at no cost, and provide certain information to individuals if the agency becomes aware of the unauthorized disclosure of their personal information.
Digitalized information can meet the definition of a public record and must be provided in the form requested if the public agency has the capability of producing it in that form. The agency is not required to acquire or design a special program to produce information in a desired form, but it has discretion to allow an individual who requests such information to design or provide a computer program to obtain the information in the desired form (Op. Atty. Gen. 1988-152 [voter registration lists]; Op. Atty. Gen. 1989-106; and Op. Atty. Gen. 1987-137).
However, KORA explicitly states a public agency is not required to allow a person to obtain the electronic copies by attaching a personal device to the agency’s computer equipment (KSA 2019 Supp. 45-219(g)).
A public agency is not required to provide copies of radio or recording tapes or discs, video tapes or films, pictures, slides, graphics, or illustrations unless the items were shown or played at a public meeting. Regardless, the agency is not required to provide items copyrighted by someone other than the public agency (KSA 2019 Supp. 45-219(a)).
Duties of Public Agencies
Under KORA, public agencies are required to:
- Appoint a freedom of information officer to assist the public with open records requests and disputes. That officer is to provide information on the open records law, including a brochure stating the public’s basic rights under the law (KSA 45-226 and KSA 45-227);
- Adopt procedures to be followed to request and obtain documents (KSA 2018 Supp. 45-220(a));
- Respond to requests where it is possible to determine the records to which the requester desires access (KSA 2019 Supp. 45-220(b)); and
- Provide, upon request, office hours, name of custodian of record, fees, and procedures for obtaining records (KSA 2019 Supp. 45-220(f)).
Rights of Public Agencies
The public agency may:
- Require written certification the requester will not use names or addresses obtained from the records to solicit sales to those persons whose names or addresses are contained in the list (KSA 2019 Supp. 45-220(c));
- Deny access if the request places an unreasonable burden in producing the record or is intended to disrupt essential functions of the agency (KSA 45-218(e)); and
- Require payment of allowed fees in advance. Fees may include costs of any computer services and staff time, but may not exceed such costs (KSA 45-218(f); KSA 2019 Supp. 45-219(c)).
Prohibited Uses of Lists of Names and Addresses
With some specified exceptions, a list of names and addresses cannot be obtained from public records for the purpose of selling or offering for sale any property or service to the persons listed (KSA 2019 Supp. 45-220(c)(2) and KSA 2019 Supp. 45-230). This provision does not prohibit commercial use generally; it just applies to use of the names to sell or offer to sell property or a service. This provision does not prohibit the agency from using names and addresses in its public records for a purpose related to that agency’s services or programs (Op. Atty. Gen. 2006-026).
Any person, including the records custodian, who knowingly violates this provision of the law and gives or receives records for this purpose can be penalized with a civil fine not to exceed $500 in an action brought by the Attorney General or a county or district attorney (KSA 2019 Supp. 45-230).
Records That Must Be Closed
Some public records are required to be closed by federal law, state statute, or Supreme Court rule.
These types of public records must be closed and are broadly referenced in KSA 2019 Supp. 45-221(a)(1). Approximately 280 different statutes require closure of certain public records. A few examples include:
- Child in need of care records and reports, including certain juvenile intake and assessment reports (KSA 2019 Supp. 38-2209);
- Unexecuted search or arrest warrants (KSA 2019 Supp. 21-5906);
- Grand jury proceedings records (KSA 2019 Supp. 22-3012);
- Health care provider peer review records (KSA 2019 Supp. 65-4915(b)); and
- Certain records associated with the Kansas Department of Health and Environment’s investigation of maternal death cases (KSA 2019 Supp. 65-177).
Records That May Be Closed
KSA 2019 Supp. 45-221(a)(1) to (55) lists other types of public records that are not required to be disclosed. The public agency has discretion to decide whether to make these types of records available. However, the burden of showing that a record fits within an exception rests with the party intending to prevent disclosure. The types of records that may be closed include:
- Records of a public agency with legislative powers, when the records pertain to proposed legislation or amendments. This exemption does not apply when such records are:
- Publicly cited or identified in an open meeting or in an agenda of an open meeting; or
- Distributed to a majority of a quorum of any body with the authority to take action or make recommendations to the public agency with regard to the matters to which these records pertain;
- Records of a public legislative agency, when the records pertain to research prepared for one or more members of the agency. Again, this exemption does not apply (i.e., the records would be open) when such records are:
- Publicly cited or identified in an open meeting or in an agenda of an open meeting; or
- Distributed to a majority of a quorum of any body that has authority to take action or make recommendations to the public agency with regard to the matters to which such records pertain;
- Records that are privileged under the rules of evidence, unless the holder of the privilege consents to the disclosure;
- Medical, psychiatric, psychological, and alcohol or drug treatment records that pertain to identifiable individuals;
- Personnel records, performance ratings, or individually identifiable records pertaining to employees or applicants for employment in public agencies;
- Letters of reference or recommendation pertaining to the character or qualification of an identifiable individual and not related to the appointment of persons to fill a vacancy in an elected office;
- Information that would reveal the identity of any undercover agent or any informant reporting a specific violation of law;
- Criminal investigation records;
- Records of emergency or security information or procedures of a public agency; plans, drawings, specifications, or related information for any building or facility used for purposes requiring security measures in or around the building or facility; or for the generation or transmission of power, water, fuels, or communications, if disclosure would jeopardize security of the public agency, building, or facility;
- Attorney work product;
- Records of public agencies that identify home addresses of certain public officials such as judges, certain officers of the courts, and county and city attorneys; and
- Public records containing information of a personal nature when public disclosure would constitute a clearly unwarranted invasion of personal privacy.
Limited Disclosure Provisions
Some statutes provide for disclosure of limited information in response to KORA requests, rather than disclosure of the complete record requested.
Recently created limited disclosure provisions include those concerning body-worn and vehicle camera recordings and certain records of the Department for Children and Families (DCF) regarding child fatalities.
Body-worn and Vehicle Camera Recordings
Every audio or video recording made and retained by law enforcement using a body camera or vehicle camera must be considered a “criminal investigation record,” as defined in KORA, thereby bringing such recordings within the exception to disclosure for criminal investigation records. This provision will expire July 21, 2021, unless reviewed and reenacted prior to that date (KSA 2019 Supp. 45-254).
In addition to any disclosures generally authorized for such recordings as criminal investigation records under KORA, the law allows certain persons to request to listen to an audio recording or to view a video recording. The law enforcement agency must allow access to these certain persons, within 20 days of the request, subject to a reasonable fee. The persons who may make such a request include the subject of the recording, any parent or legal guardian of a person under the age of 18 years who is a subject of the recording, an heir-at-law of a deceased subject of a recording, or an attorney for any of the previous persons listed (KSA 2019 Supp. 45-254(c)).
Child Fatality Information
House Sub. for SB 336 (L. 2018, ch. 87), among other provisions, added a requirement that the Secretary for Children and Families (Secretary), as allowed by applicable law, release within seven days the following information when child abuse or neglect results in a child fatality and a request is made under KORA: age and sex of the child; date of the fatality; a summary of any previous reports of abuse or neglect received by the Secretary involving the child, along with the findings of such reports; and any service recommended by DCF and provided to the child (KSA 2019 Supp. 38-2212(f)(3)).
The bill added a similar provision requiring the Secretary, as allowed by applicable law, to release the following information within seven days when a child fatality occurs while the child was in the custody of the Secretary and a request is made under KORA: age and sex of the child, date of the fatality, and a summary of the facts surrounding the death of the child (KSA 2019 Supp. 38-2212(f)(4)).
Sunset of Exceptions
A sunset provision for all exceptions added in 2000 required review of any exception within five years, or the exception would expire. It also required any exceptions continued after legislative review to be reviewed again five years later (KSA 2019 Supp. 45-229).
In 2013, the Legislature modified the review requirement in KSA 2019 Supp. 45-229 so that exceptions will no longer be subject to review and expiration if the Legislature has twice reviewed and continued the exemption or reviews and continues the exemption during the 2013 Session or thereafter (2013 HB 2012; L. 2013, ch. 50).
In 2020, Senate Sub. for HB 2137 (L. 2020, ch. 12) continued exemptions present in 10 statutes. Topics included, but were not limited to, law enforcement records identifying victims of certain crimes, public records identifying the home address of certain officials, treatment records in the possession of a treatment facility, and survey responses to audits conducted under the Legislative Post Audit Act.
Enforcement of the Open Records Law
HB 2256 (L. 2015, ch. 68) changed enforcement of both KORA and the Kansas Open Meetings Act (KOMA). The law requires the Attorney General to provide and coordinate KORA and KOMA training throughout the state, including through coordination with appropriate organizations (KSA 2019 Supp. 75-761). Further, the statute gives the Attorney General or a county or district attorney various subpoena and examination powers in KORA and KOMA investigations (KSA 2019 Supp. 45-228; KSA 2019 Supp. 75-4320b).
Among other enforcement provisions, the bill allows the Attorney General or a county or district attorney to accept a consent judgment with respect to a KORA or KOMA violation, in lieu of filing an action in district court, and allows the Attorney General to enter into a consent order with a public agency or issue a finding of violation to the public agency upon discovery of a KORA or KOMA violation (KSA 2019 Supp. 75-4320d; KSA 2019 Supp. 45-4320f).
Finally, HB 2290 (L. 2019, ch. 62) provides for repayment by a state agency to the Tort Claims Fund of the cost of defense or indemnification provided for the agency or employee arising out of an alleged violation of KORA (KSA 2019 Supp. 75-6617).
Pursuant to KSA 2019 Supp. 75-753, the Attorney General compiles and publishes an annual report for each fiscal year with information about complaints and investigations involving KORA and the Kansas Open Meetings Act. For FY 2019, the Attorney General’s Office reported five complaints under KORA against state agencies resulting in corrective action, three complaints against cities resulting in corrective action, three complaints against counties resulting in corrective action, and two complaints against community colleges resulting in corrective action. Additionally, 3 complaints were referred to county or district attorney offices, and 29 complaints resulted in a finding of no violation of KORA.
For more information on KOMA, see article D-2 Kansas Open Meetings Act, available at http://www.kslegresearch.org/KLRD-web/Briefing-Book-2021.html.
Criminal Penalty for Altering Public Record
Altering, destroying, defacing, removing, or concealing any public record is a class A nonperson misdemeanor (KSA 2019 Supp. 21-5920).
For questions regarding application or suspected violations of KORA, please contact the Office of the Attorney General. Limitations under Kansas law do not allow the Kansas Legislative Research Department to provide legal advice, interpretation of statute, or the legislative intent of a statute.
- See Ted Frederickson, Letting the Sunshine In: An Analysis of the 1984 Kansas Open Records Act, 33 Kan. L. Rev. 216-7. This analysis was utilized as recently as the 2017 Kansas Court of Appeals decision in State v. Great Plains of Kiowa County, Inc. (53 Kan. App. 2D 609, 389 P3d 984).
Robert Gallimore, Managing Research Analyst
Natalie Nelson, Principal Research Analyst