Kansas Attorney General Opinion 1992-028

ROBERT T. STEPHAN
ATTORNEY GENERAL February 24, 1992
ATTORNEY GENERAL OPINION NO. 92- 28
The Honorable Nancy Parrish
State Senator, 19th District
State Capitol, Room 403-N
Topeka, Kansas 66612
Re: Public Records, Documents and Information --
Records Open to Public -- Procedures for Obtaining
Access to or Copies of Records
Synopsis: If a public record is not closed or its use
limited, a public agency may only require a written
request, advance payment of prescribed fees and
proof of the requestor's identity prior to granting
access to or copies of such open public records. A
public agency may adopt procedures designed to
safeguard public records and minimize disruption of
public business and may supply a form for
requesting records as a means of facilitating the
process. However, the agency may not require that
a written request for an open public record be made
in a certain form prior to granting access to or
copies of such records. However, if the requested
record's use is limited pursuant to K.S.A. 21-3914
or K.S.A. 1991 Supp. 45-221, a public agency may
also require a notarized statement attesting to the
matters set forth in K.S.A. 45-220(c)(1) or (2).
Cited herein: K.S.A. 21-3914; 45-215; 45-217;
45-219; 45-220; K.S.A. 1991 Supp. 45-221; K.S.A.
53-101.

Dear Senator Parrish:
You request our opinion on whether public agencies subject to
the Kansas Open Records Act may require requestors to sign a
written notarized request prior to obtaining access to or
copies of public records.
K.S.A. 45-215 et seq. create the Kansas Open Records Act
(KORA) and generally declare that public records shall be
open for inspection unless otherwise provided by the act.
K.S.A. 45-217 defines public agencies and public records
subject to the KORA. For the purposes of this opinion we
will assume that the record and agency in question are in fact
subject to the KORA.
K.S.A. 45-219 addresses abstracts or copies of records and
states in pertinent part:
"(a) Any person may make abstracts or
obtain copies of any public record to
which such person has access under this
act. If copies are requested, the public
agency may require a written request and
advance payment of the prescribed
fee . . . ."
K.S.A. 45-220 also speaks to procedures for obtaining copies
of public records:
"(a) Each public agency shall adopt
procedures to be followed in requesting
access to and obtaining copies of public
records, which procedures shall provide
full access to public records, protect
public records from damage and
disorganization, prevent excessive
disruption of the agency's essential
functions, provide assistance and
information upon request and insure
efficient and timely action in response to
applications for inspection of public
records.
"(b) A public agency may require a
written request for inspection of public
records but shall not otherwise require a
request to be made in any particular
form. Except as otherwise provided by

subsection (c), a public agency shall not
require that a request contain more
information than the requester's name and
address and the information necessary to
ascertain the records to which the
requester desires access and the
requester's right of access to the
records. A public agency may require
proof of identity of any person requesting
access to a public record.
"(c) If access to public records of an
agency or the purpose for which the
records may be used is limited pursuant to
K.S.A. 21-3914 or 45-221, and amendments
thereto, the agency may require a person
requesting the records or information
therein to provide written certification
that:
"(1) The requester has a right of access
to the records and the basis of that
right; or
"(2) the requester does not intend to,
and will not: (A) Use any list of names
or addresses contained in or derived from
the records or information for the purpose
of selling or offering for sale any
property or service to any person listed
or to any person who resides at any
address listed; or (B) sell, give or
otherwise make available to any person any
list of names or addresses contained in or
derived from the records or information
for the purpose of allowing that person to
sell or offer for sale any property or
service to any person listed or to any
person who resides at any address
listed." (Emphasis added).
When access to or copies of an open public record are
requested, public agencies subject to the KORA may, pursuant
to K.S.A. 45-220, (1) require written request for copies, (2)
require advance payment of prescribed fees, (3) require proof
of the requester's identity, including their name and address,
(4) require information necessary to ascertain the records to
which the requester desires access and the requester's right

of access to the records, and (5) adopt procedures for
requesting access and copies of public records.
The procedures adopted by the public agency should be designed
to protect public records from damage and disorganization and
prevent excessive disruption of the agency's essential
functions, while nevertheless providing full access to open
public records and providing assistance and information upon
request.
The written request approved by K.S.A. 45-219(a) is more
completely addressed in K.S.A. 45-220(b). While the agency
may not require that the written request be in a particular
form, K.S.A. 45 - 220(b) permits a public agency to require the
written provision of certain information. Thus, except as
otherwise provided by K.S.A. 45-220(c), a public agency may
only require that requests for access or copies of public
records be in written form, accompanied by advance payment of
prescribed fees, and that the written request contain proof of
the requester's identity (including their name and address)
and enough information necessary to ascertain the records to
which the requester desires access and the requester's right
of access to the records.
However, K.S.A. 45-220(c) grants increased authority to public
agencies when the use of the requested record is limited by
K.S.A. 21-3914 or K.S.A. 1991 Supp. 45-221. When dealing
with a public record which lists names and addresses, K.S.A.
21-3914 provides criminal penalties against those who provide
or obtain such a public record for the purpose of selling or
offering to sell any property or service to a person listed
therein. See Attorney General Opinions No. 89-47, 87-73,
87-13, 86-39, 86-1, 85-34, 84-130, 84-106 and 84-45. K.S.A.
1991 Supp. 45-221 contains certain records which may be
discretionarily closed or disclosed. If disclosed, the use
of some of these types of records is limited.
Thus, if the requested record meets the description of limited
use set forth in K.S.A. 21-3914 or K.S.A. 1991 Sup. 45-221, a
public agency may, in addition to those matters approved by
K.S.A. 45 - 220(b), also require written certification of those
matters set forth in K.S.A. 45-220(c)(1) or (2).
Certification is defined as "the formal assertion in writing
of some fact." Blacks Law Dictionary 206 (5th ed. 1979).
Merely writing an assertion does not "certify" that fact.
Notarization under K.S.A. 53-101 et seq. is the
procedure adopted by the state for acknowledgement of formal

written declarations or assertions. Thus, it is our opinion
that a public agency may require notarization of statements
made under oath attesting to the information set forth in
K.S.A. 45-219(c)(1) or (2) prior to granting access to or
copies of records whose use may be limited pursuant to K.S.A.
21-3914 or K.S.A. 1991 Supp. 45-221. If a record is not
subject to limitations imposed by K.S.A. 21-3914 or K.S.A.
1991 Supp. 45-221, notarization of the written record
request may be requested by the public agency, but may not be
required prior to granting public access.
Very truly yours,
ROBERT T. STEPHAN
ATTORNEY GENERAL OF KANSAS
Theresa Marcel Nuckolls
Assistant Attorney General
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