N. Other limits on closure
1. May a public agency use a contract to close public records?
No, not unless that contract has some statutory basis allowing or requiring closure of the record or information in question. Contractual provisions attempting to close certain terms are void as against public policy, provided no other closure exemptions apply. A.G. Opin. No. 91-116; 93-55. In order to close a public record, a public agency must be relying on a law (federal or state) or a court rule/order, that applies to the record(s) or information in question. A contract alone cannot be used to make something confidential or override the openness required by the KORA.
2. What if a public record contains information that is "mixed"; some of it is allowed to be closed, but other portions are not allowed to be closed?
If a public record contains material not subject to disclosure, that portion of the record may be deleted but the rest of the information or record must be made available. K.S.A. 45-220(d). See also, Tew v. Topeka Police & Fire Civ. Serv. Comm'n, 237 Kan. 96 (1985); State ex rel. Stephan v. Harder, 230 Kan. 573 (1982); K.S.A. 45-221(d). This separation of open from closed information (redaction) may be done in several ways; cutting out, blacking or whiting out, or someone removing the confidential information, or creation of a whole new record. What is appropriate will depend upon the facts. Keep in mind, however, that a public agency can legally charge fees for the staff time it takes to do such "redaction" work.
3. If a public record is reviewed and discussed during an open meeting, may it still be closed?
Not usually! If a record is reviewed and discussed during an open meeting, a record that may ordinarily be discretionarily closed, generally becomes open. The reason for this rule is to insure that open meetings are not conducted "in code."
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