1. What does it mean to be a "public agency" subject to the KORA?
A public agency is the state or any political or taxing subdivision, or any office, officer, or agency thereof, or any other entity, receiving or expending and supported in whole or part by public funds. It is some office or agency that is connected with state or local government.
2. Is a business or group automatically subject to the KORA merely because it receives public funds?
No. No entity is included under KORA solely because it receives public funds in exchange for goods or services. K.S.A. 45-217(f)(2)(A). Receipt of public funds alone will not subject a mere vendor to the KORA. However K.S.A. 45-240, which was adopted in 2005, requires that certain otherwise private not-for-profit groups receiving public funds provide some accounting concerning how that money was spent. For a copy of K.S.A. 45-240, see www.kslegislature.org
3. Can a not-for-profit entity be subject to the KORA?
Yes. But each group and situation is very fact specific. Although most private entities are not subject to the KORA, some nonprofit corporations might be covered by the KORA if they were created by some state or local unit of government and/or help carry out some governmental functions.
4. What are the tests for determining if a not-for-profit entity is subject to the KORA?
Cases generally turn on (1) the extent of public funding, (2) whether there is a specific service provided for the funds, (3) whether the entity was created by a governmental entity or statute, and (4) whether it is providing a traditionally governmental service. Other factors to consider include the amount and degree of control over the non-profit by some obvious governmental entity, whether the employees and actions are covered by laws that usually only apply to governmental entities (e.g. Tort Claims Act, public retirement benefits, etc.) and so forth.
5. What are some examples of not-for-profit entities that are subject to the KORA?
- Some specific nonprofit entities providing mental health services are subject because there is specific statutory authorization for contracts with such nonprofits and in such a capacity they perform traditional governmental functions. A.G. Opin. No. 94-111.
- Nonprofit city hospital because authorized by statute and created by city. A.G. Opin. No. 88-61.
6. What are some examples of not-for-profit entities that are not subject to the KORA?
- In Memorial Hospital Assn., Inc., v. Knutson, 239 Kan. 663 (1986), a nonprofit operating a county hospital was determined not to be subject to the Kansas Open Meetings Act, KOMA. The association leased the hospital for $1.00 per year and received $228,000 from the county mill levy, budgeted by the county hospital board of trustees. The Court described this as limited receipt of public funds.
- The NCAA is not subject to KORA merely because member schools pay dues in exchange for services provided by the NCAA. A.G. Opin. No. 97-64.
- WSU Endowment Assn. A.G. Opin. No. 82-172.
- Sheltered Living, Inc., A.G. Opin. No. 2004-34 (a privately formed non-profit provided services to a special population, was heavily regulated, and received their funding from various public entities; however, it had no direct government entity oversight or control).
- The KORA does not apply to private associations or privately formed groups; e.g. private doctors, church councils, private youth groups, home-owner's associations, etc.
7. When does an otherwise private non-profit entity have to provide financial records on how they spend public funds?
When they are covered by K.S.A. 45-240, which can only be decided on a case-by -case basis. Under this statute, non-profit entities that receive more then $350 a year from the government must generally account for how they expend that money: [Exemptions include (a) those non-profits that file a financial report with some public entity or agency; (b) those non-profits that are health care providers, (c) individual persons and (d) for profit corporations or partnerships.] [Public funds means money received from the United States, the state of Kansas, or any taxing subdivision thereof, or any officer, board, commission or agency thereof.] See www.kslegislature.org for copies of statute.
8. Are judges subject to the KORA?
No. Judges are not defined as a "public agency" subject to the KORA. A judge's telephone records do not become public merely because another branch of government's data processing facilities maintains the records for the judicial branch. A.G. Opin. No. 96-77.
9. Are court records subject to the KORA?
Maybe. The KORA, by its express terms, applies to court records. However, the KORA allows judicial branch to make its own rules and the Supreme Court or district court may have a rule or an order closing a specific court record. Therefore, when seeking records from a court, check the court rules. The Kansas Supreme Court has posted information relative to obtaining access to court records at : http://www.kscourts.org/orab.htm .
10. Are records made, maintained or kept by a legislator or a member of a governing body (such as a city council member or a county commissioner) subject to the KORA?
No. Under K.S.A. 45-217, records made, maintained or kept by a legislator or member of a governing body are not defined as public records. K.S.A. 45-217. However, if another person or public office has a copy of the same record, the KORA may apply to the record.
11. If a public official or employee has a record in their possession, while at work, does that automatically make it a public record subject to the KORA?
No. Records owned by private persons which are not related to a governmental function are not covered by the KORA. See K.S.A. 45-217 definitions at www.kslegislature.org .
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