1. May a public agency close notes, preliminary drafts, research data in the process of analysis, memoranda or other records in which opinions are expressed or policies or actions are proposed?
Yes. See K.S.A. 45-220(a)(20). However, this exception does not apply when such records are cited or identified in a public meeting. A.G. Opin. No. 90-14. See also, K.S.A. 45-221(a)(21) and (22); records of public agency having legislative powers. A.G. Opin. No. 90-92. These three provisions "are intended to protect an agency's internal pre-decisional deliberations from early disclosure."
2. May a public library close its records on who checked out books or materials?
Yes. A public agency may close library patron and circulation records which pertain to identifiable individuals. K.S.A. 45-221(a)(23). Public agencies may also close archive and museum materials contributed by private parties if closure was a condition of donation and is not connected with a donation to a specific public official or employee. K.S.A. 45-221(a)(7) and (8).
3. May a public agency close public records in order to protect the personal privacy of an individual?
Yes, if disclosure of the information would constitute a clearly unwarranted invasion of personal privacy. See K.S.A. 45-221(a)(30). A.G. Opins. No. 92-149 (victim of sex offense); 99-55, 98-38, 87-25 (social security number). This is a very limited exception, and often turns upon the circumstances of each individual situation. K.S.A. 45-217 defines "clearly unwarranted invasion of personal privacy" 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 a legitimate concern to the public." Cases from other states are not consistent, but generally employ a balancing test of public interest vs. private harm, allowing closure only when there is a some demonstrable harm that could occur if the information is released.
4. May a public agency close social security numbers, mothers' maiden names and dates of birth contained in public records?
Yes. In 2005 the Kansas Supreme Court held that this kind of information can be redacted from public records, pursuant to K.S.A. 45-221(a)(30). See Data Tree, L.L.C. v. Meeks, 109 P.3d 1226, ___ Kan.App.2d ____ (2005).
5. May a public agency close public records concerning prospective location of a business or industry where no previous public disclosure has been made?
Yes. See K.S.A. 45-221(a)(31).
6. May a public agency close public records connected with a bid process?
Yes, in some situations.
a. Specifications for competitive bidding may be closed until the specifications are approved. K.S.A. 45-221(a)(27).
b. Sealed bids may be closed until a bid is accepted or all rejected. K.S.A. 45-221(a)(28).
7. May a public agency close public records that contain engineering or architectural estimates for public improvements?
Yes. See K.S.A. 45-221(a)(32). This statute allows a public agency to prevent bidders from learning a public agency's estimates of cost of a project, prior to awarding a bid.
8. May a public agency close public records containing financial information submitted by a contractor in connection with qualifying for a job?
Yes. See K.S.A. 45-221(a)(33). See also K.S.A. 45-221(c)(2) and K.S.A. 60-432, trade secrets.
9. May a public agency close public records concerning emergency or security procedures?
Yes. See K.S.A. 45-221(a)(12) and (45) on www.kslegislature.org .
10. May a public agency close public records that would be privileged under evidence rules, including attorney-client or trade secrets?
Yes. If such a privilege actually exists, which is usually a highly fact intensive issue. See K.S.A. 45-221(a)(2) and (a)(25).
11. May a public agency close attorney related records as attorney-client privileged or work-product information?
Not necessarily. This issue has to be decided on a case-by-case basis. Cypress Media, Inc. v. City of Overland Park, 268 Kan. 407 (2000) held that attorney billing records are not closed, per se, as either attorney client privilege or work product privilege, and therefore generally must be disclosed if in the possession of a public agency. All narrative statements in attorney billing statements are not per se privileged. Rather, parties claiming the privilege will have to show its application to particular narrative statements in billing records. Parties objecting to discovery on the basis of the attorney-client privilege bear the burden of establishing that the privilege applies. To carry the burden, they must describe the documents or information to be protected, state precise reasons for the objection to discovery, and provide sufficient information to enable the court to determine whether each element of the asserted privilege is satisfied. A blanket claim as to the applicability of a privilege does not satisfy the burden of proof. Some details may be closed, but the burden is on the public agency to justify it. An investigation by an attorney for a client for the purpose of providing legal advice may be closed as attorney client privileged. See A.G. Opin. No. 99-48. If a record may be closed because of the attorney-client privilege rules, the client alone can waive that confidentiality.
12. May a public agency close medical or treatment records?
Yes. If the terms of K.S.A. 45-221(a)(3) or some other statute/law apply to the agency and/or the records.
13. May a public agency involved in or contemplating a civil or administrative adjudication close investigatory records connected with a specific situation or case?
Yes, if disclosure would interfere with a prospective administrative adjudication or civil litigation or reveal the identity of a confidential source or undercover agent. See K.S.A. 45-221(a)(11).
14. If the public agency does not take civil or administrative action based upon its civil investigation, can the public agency still close civil investigation records?
No. Unlike criminal investigation records, K.S.A. 45-221(a)(11) limits closure authority. Public records created or obtained in connection with a civil investigation can be closed under this exception, but only if disclosure would interfere with a prospective administrative adjudication or civil litigation or reveal the identity of a confidential source or undercover agent. An agency's civil investigatory file becomes open at the completion of the case. A.G. Opin. No. 97-76. A case may still be "pending" as long as some legal action on the matter is possible, including appeals etc.
15. What if the public agency is conducting a civil investigation concerning one of its own employees; can they still close personnel records even after the investigation and action is no longer pending?
Yes. In some cases, records pertaining to an internal investigation of an agency's employee, disclosure of which would not interfere with a prospective administrative adjudication or civil litigation nor disclose the identity of a confidential informant, may nevertheless still be discretionarily closed if they fit the definition of a personnel record. A.G. Opin. No. 91-127.
16. Can a public agency close correspondence between a public agency and a private individual?
Yes. The KORA authorizes closure of correspondence between a public agency and a private individual, other than correspondence intended to give notice of an agency action, policy or determination. See K.S.A. 45-221(a)(14). For example, a complaint to a professional licensing board may be closed, however the letter in response to the complaint is open. A.G. Opin. No. 97-76.
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