Printable Format45-222. Civil remedies to enforce act; attorney fees. (a) The district court of any county in which public records are located shall have jurisdiction to enforce the purposes of this act with respect to such records, by injunction, mandamus, declaratory judgment or other appropriate order, in an action brought by any person, the attorney general or a county or district attorney. The district court may require a defendant to complete training approved by the attorney general concerning the requirements of the open records act.
(b) In any action hereunder, the court shall determine the matter de novo. The court on its own motion, or on motion of either party, may view the records in controversy in camera before reaching a decision.
(c) In any action hereunder, or under K.S.A. 45-251, and amendments thereto, the burden of proof shall be on the public agency to sustain its action.
(d) In any action hereunder, the court shall award costs and a reasonable sum as an attorney's fee for services rendered in such action, including proceedings on appeal, to be recovered and collected as part of the costs to the plaintiff if the court finds that the agency's denial of access to the public record was not in good faith and without a reasonable basis in fact or law. The award shall be assessed against the public agency that the court determines to be responsible for the violation.
(e) In any action hereunder in which the defendant is the prevailing party, the court shall award to the defendant costs and a reasonable sum as an attorney's fee for services rendered in such action, including proceedings on appeal, to be recovered and collected as part of the costs if the court finds that the plaintiff maintained the action not in good faith and without a reasonable basis in fact or law.
(f) In any action hereunder brought by the attorney general or a county or district attorney, if the court finds that any provisions were violated, such court:
(1) Except as provided in subsection (f)(2), may award the attorney general's or the county or district attorney's reasonable expenses, investigation costs and attorney fees; and
(2) shall award the same if the court determines that the violation was not made in good faith and without a reasonable basis in fact or law.
(g) Except as otherwise provided by law, proceedings arising under this section shall be assigned for hearing and trial at the earliest practicable date.
(h) The provisions of subsections (d) and (e) concerning the awarding of costs and attorney fees for services rendered during an appeal shall apply only to actions which are based on causes of action accruing on or after July 1, 2004.
History: L. 1984, ch. 187, § 8; L. 1984, ch. 282, § 6; L. 1990, ch. 190, § 1; L. 2000, ch. 156, § 4; L. 2004, ch. 151, § 2; L. 2015, ch. 68, § 11; July 1.
Law Review and Bar Journal References:
"Agency Access and Disclosure: Kansas and Federal," David L. Ryan, 56 J.K.B.A., No. 6, 8, 11 (1987).
"Hazardous Waste Regulation in the United States a Mind-Numbing Journey," James O. Neet, Jr., 61 J.K.B.A. No. 1, 31, 34 (1992).
"Kansas Sunshine Law: How Bright Does It Shine Now? The Kansas Open Meetings and Open Records Acts," Theresa "Terry" Marcel, 72 J.K.B.A. No. 5, 28 (2003).
"Disappearing Fee Awards and Civil Enforcement of Public Records Laws," Katrina G. Hall, 52 K.L.R. 721 (2004).
Attorney General's Opinions:
Rosters of inmates not subject to exception for criminal investigation records. 84-124.
Breath test machine results log is criminal investigation record; not required to be disclosed to public. 87-63.
Response to information request to KDHE for open record information. 87-86.
Property assessments; appraisals and valuations; installation and maintenance of records; open to public inspection. 91-145.
CASE ANNOTATIONS
1. Provisions of this act not retroactive; due to repeal of K.S.A. 45-201 et seq. and enactment hereof, personnel files specifically excepted. Tew v. Topeka Police & Fire Civ. Serv. Comm'n, 237 Kan. 96, 102, 105, 697 P.2d 1279 (1985).
2. Cited; failure to provide private remedies in Kansas Uniform Trade Practices Act (K.S.A. 40-2401 et seq.) implies no private remedy intended. Earth Scientists v. United States Fidelity & Guar., 619 F. Supp. 1465, 1471 (1985).
3. Disclosure of criminal investigation records; in camera inspection by trial court. Harris Enterprises, Inc. v. Moore, 241 Kan. 59, 67, 734 P.2d 1083 (1987).
4. Act for judicial review and civil enforcement of agency actions (K.S.A. 77-601 et seq.) inapplicable to actions governed by KORA. State Dept. of SRS v. Public Employee Relations Board, 249 Kan. 163, 166, 815 P.2d 66 (1991).
5. Reliance on nonapplicable AG opinion denying disclosure not in bad faith; denial of attorney fees not abuse of discretion. Southwest Anesthesia Serv., P.A. v. Southwest Med. Ctr., 23 Kan. App. 2d 950, 954, 937 P.2d 1257 (1997).
6. City failed to meet burden of proof to assert attorney-client privilege in disclosure of attorney fee billing statements. Cypress Media, Inc. v. City of Overland Park, 268 Kan. 407, 410, 997 P.2d 681 (2000).
7. Wyandotte District Court lacks jurisdiction in mandamus action under KORA for records that have never been maintained in Wyandotte County (Missouri Corporation; records in Missouri). Altevogt v. Youthfriends, 29 Kan. App. 2d 473, 27 P.3d 947 (2001).
8. Award of attorney fees reversed; justification for such is agency's unreasonable denial of access to public records not conduct of attorneys in defense of lawsuit. Telegram Publishing Co. v. Kansas Dept. of Transportation, 30 Kan. App. 2d 830, 49 P.3d 554 (2002).
9. Sanctions for denial of information limited to attorney fees prior to suit. Telegram Publishing v. Kansas Dept. of Transportation, 275 Kan. 779, 69 P.3d 578 (2003).
10. Register of deeds may exercise discretion in refusing to release information of personal nature in public records; person seeking records is obliged to pay costs to redact records and is not entitled to attorney fees. Data Tree v. Meek, 279 Kan. 445, 109 P.3d 1226 (2005).
11. An individual cannot recover damages from a violating public agency. Clark v. USD 287, 55 Kan. App. 2d 402, 413, 416 P.3d 1032 (2018).