Kansas Attorney General Opinion 2014-017

November 18, 2014
ATTORNEY GENERAL OPINION NO. 2014- 17
Shari Feist Albrecht, Chairperson
Jay Emler, Commissioner
Pat Apple, Commissioner
Kansas Corporation Commission
1500 SW Arrowhead Road
Topeka, Kansas 66604-4027
Re: 	Public Utilities—Utility Damage Prevention—Notification Center; Duties
and Operation; Fees; Annual Report; Audits—Public Agency
Synopsis: 	The notification center created by the Kansas Underground Utility Damage
Prevention Act is a public agency. 	Cited herein: 	K.S.A. 66-1801; K.S.A.
2014 Supp. 66-1802; K.S.A. 66-1803; K.S.A. 2014 Supp. 66-1804; 66-
1805; and 66-1806.
* 	* 	*
Dear Chairperson Feist Albrecht and Commissioners Emler and Apple:
As members of the Kansas Corporation Commission, you ask for our opinion on
whether the notification center created by the Kansas Underground Utility Damage
Prevention Act (KUUDPA) is a public agency.
The Legislature created KUUDPA in 1993 to protect the State’s underground utility
infrastructure from excavation damage and to protect the public from harm by requiring
compliance with specific and uniform notification requirements.1 Specifically, the act
created a mandatory damage protection program that requires excavators 2 to give
1 K.S.A. 66-1801 et seq. The Kansas Legislature enacted KUUDPA to qualify for full grant eligibility in the
pipeline safety arena under federal regulations. See 58 FR 10985-02, 10987, 1993 WL 44860; see also
49 C.F.R. § 198.35.
2 See K.S.A. 2014 Supp. 66-1802(d), K.S.A. 66-1803 and K.S.A. 2014 Supp. 66-1804.

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notice of intent to excavate to a centralized statewide communication system known as
the notification center. 3 The notification center disseminates that information to the
applicable utility operators 4 who are required to mark the location of underground
utilities within a specified time in order to prevent damage to those utilities during
excavation. 5
KUUDPA recognizes the establishment of a single notification center for the State of
Kansas, and requires each operator of an underground facility to become a member of
the notification center. 6
In 2008, the Legislature enacted House 	Bill 2637 7 to amend KUUDPA, and the
Governor signed the bill into law on April 24, 2008. 8 This amendment, among other
things, imposed several public accountability requirements on the State's notification
center. The pertinent amendment provides:
The notification center established pursuant to this section shall be and is
hereby 	deemed 	to 	be 	a 	public 	agency 	and 	shall 	be 	subject 	to 	the
provisions 	of 	the 	open 	records 	act, 	K.S.A. 	45-215 	et 	seq., 	and
amendments thereto, and the open meetings act, K.S.A. 75-4317 et seq.,
and amendments thereto, except that the notification center or board of
directors, 	or 	successor 	managing 	organization 	shall 	not 	disseminate,
make available or otherwise distribute data or information provided by an
operator of a tier 1, 2 or 3 facility unless such dissemination, making
available or distributing is necessary for the state corporation commission
or the notification center to carry out legal duties or specific statutory
duties prescribed under this chapter.9
Statutory interpretation begins with the language selected by the legislature. If that
language is clear and unambiguous, a court will not speculate regarding legislative
intent nor read into the statute something that is not readily found in it.10
It is clear from the language quoted above that the Legislature intended for the
notification center to be a public agency. It provided that the notification center shall be
a public agency, and in case there was some question as to their intent, the Legislature
further provided that it also is deemed a public agency. 	While the provision explicitly
delineates that the notification center shall be subject to the Kansas Open Records Act
3 K.S.A. 2014 Supp. 66-1802(i) defines the term “notification center” to be a statewide communication
system operated by an organization which has as one of its purposes to receive and record notification of
planned excavation in the state from excavators and to disseminate such notification of planned
excavation to operators who are members and participants.
4 See K.S.A. 66-1805.
5 K.S.A. 2014 Supp. 66-1806(a).
6 K.S.A. 2014 Supp. 66-1805(a).
7 L. 2008, Ch. 122.
8 House Journal 2376 (2009 Session).
9 K.S.A. 2014 Supp. 66-1805(l). Emphasis added.
10 Hays v. Ruther, 298 Kan. 402, 404–05 (2013).

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and the Kansas Open Meetings Act, it does not state that the notification center is a
public agency only for those purposes.
Given the plain language of K.S.A. 2014 Supp. 66-1805(l), we conclude that a court
would likely find that the notification center is a public agency.
Sincerely,
Derek Schmidt
Attorney General
Athena Andaya
Deputy Attorney General
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