The Honorable John M. Toplikar State Representative, 15th District 507 E. Spruce Olathe, Kansas 66061
Dear Representative Toplikar:
You request our opinion on the general legality of a computerized public record retrieval and request system being used by Johnson county. You note that the county has established the "Johnson County Information Network" (JCIN). You question certain aspects of the procedure adopted by JCIN and whether it comports with the Kansas open records act (KORA). We understand from Johnson county counselor Don Jarrett that this program allows people to have dial-up modem access to view the county real estate files and tax roll information, but that this system is not the required or sole method for accessing these public records.
You enclose several documents used by the county in connection with this system. There are paragraphs in the request form that have the requestor state, "I understand that my access to the data and information obtained through JCIN is at the sole discretion of Johnson County, Kansas and the Committee and that the County may terminate my access at any time without cause" and "I shall use the data and information I obtain through JCIN for internal business purposes only, and will not provide such data or information to any person or organization, except when it is appropriate to do so in order to carry out the normal functions of my position."
The "Dial-Up Data Access and License Agreement" sets forth the terms and conditions under which the county will make available certain data and information by an on-line electronic information network. In article I(A) of the agreement the requestor is granted a license that is non-exclusive, revocable and non-transferable. Article II describes the data and information that will be provided: "The parcel, address and ownership inquiry, the legal descriptions and values, the taxes and special assessments, the levies and tax districts, and the residential property characteristics."
The access request form asks the record requestor for: (1) The name of the company or person making the request (2) the billing address and other identifiers, (3) a "Security Request" for real estate information (i.e. certified appraiser number for each individual), (4) a $50.00 annual license fee and (5) a $5.00 per user fee. You inform us that the county also charges an on-line connect fee of 31 cents per minute. With these and other facts in mind, you ask us to determine whether the system is violative of the KORA.
The KORA is set forth at K.S.A.
K.S.A. 1994 Supp.
"Except to the extent disclosure is otherwise required by law or as appropriate during the course of an administrative proceeding or on appeal from agency action, a public agency or officer shall not disclose financial information of a taxpayer which may be required or requested by a county appraiser to assist in the determination of the value of the taxpayer's property for ad valorem taxation purposes; or any financial information of a personal nature required or requested by a public agency or officer. . . ." (Emphasis added).
K.S.A. 1994 Supp.
K.S.A. 1994 Supp.
"Except as provided by subsection (f) or where fees for inspection or for copies of a public record are prescribed by statute, each public agency may prescribe reasonable fees for providing access to or furnishing copies of public records, subject to the following: (1) In the case of fees for copies of records, the fees shall not exceed the actual cost of furnishing copies, including the cost of staff time required to make the information available. (2) In the case of fees for providing access to records maintained on computer facilities, the fees shall include only the cost of any computer services, including staff time required. . . ." (Emphasis added).
With these general KORA rules in mind, we will now address your specific questions.
You first ask if the county is authorized to license persons for the privilege of accessing public records. A license is generally "permission by competent authority to do an act which, without such permission, would be illegal, a trespass, or a tort." Black's Law Dictionary 829 (5th ed. 1979). A license thus is leave to do what would otherwise be impermissible. The KORA gives any person the right to access open public records. While a certain procedure may be used to facilitate access, the requestor ordinarily needs no additional permission or authority to obtain copies of or access to open public records.
However, the KORA does not speak to situations involving the availability of two alternative means of access. Whether such permission (or license) is appropriate or necessary in this situation depends upon the exact nature and type of record being requested or accessed, the laws applicable to those records, and other available means of access. The "license" in this instance appears to be the means of granting authority to connect directly into county computer equipment. A public record custodian has the right and the duty to insure that public records are properly cared for. See K.S.A.
Your second question is whether the KORA allows approval of the license by the named committee. The KORA recognizes that record request decisions are made by the "official record custodian" or their designee. See K.S.A. 1994 Supp.
You next raise questions concerning article II, paragraph E of the agreement. As you point out, this language asserts that the data base ". . . and the data and information accessed under this Agreement are proprietary, intellectual property of the County and shall not be considered or deemed as open, public records, which are available for inspection and viewing in suitable and accessible alternative forms. . . ." K.S.A. 1994 Supp.
The county characterizes the computerized information as proprietary in nature. When used in connection with property, the word proprietary ordinarily means that a thing is owned, or belongs to the entity claiming that type of interest. See Loblaw,Inc. v. New York State Bd. of Pharmacy, 12 A.2d 180 (N.Y. 1961). When a municipality is engaged in performance of a "governmental function" it exercises sovereign power to look after the general public; by contrast, when it embarks upon an enterprise which is commercial in character or which is usually carried on by private entities, it is engaged in a "proprietary enterprise." City ofWichita, Kan. v. U.S. Gypsum Co.,
"In determining whether activities of a municipal corporation are governmental or proprietary, it is proper to consider whether the activity is primarily for the advantage of the state as a whole or the special local benefit of the community involved, and to further consider whether such activity is in performance of a duty imposed upon the municipality by the sovereign power, or is in the exercise of a permissive privilege given by the sovereign power, but such tests are not conclusive to determine the capacity in which the city's activities are conducted." Id. at 860.
The KORA does not require that computerized on-line access be given to public records nor that the county create a software program to provide such a service. Thus, the software itself and the on-line service may properly be characterized as proprietary in nature. Nevertheless, the KORA requires that, once a record is created or possessed by an agency, all such records are public records and must therefore be open unless otherwise closed by law. It is our opinion that the form of the record, computerized or hard copy, does not alter the uniformly applicable provisions of the KORA.
We realize that computer formatted information does not always fit neatly within concepts previously applied to paper records. This is especially true when a newly created software program allows the creation of a heretofore non-existent record. However, there is authority supporting application of public records law to all records possessed by a public agency, including computerized records. State ex rel Stephan v. Harder,
Attorney General Opinion No. 88-152 also addressed public access to or the provision of computerized information. In that situation, a county had its voter registration list on a computer disk. Attorney General Stephan was asked if a copy of that disk, or other computer-readable form, was required rather than a hard copy print-out. It was the opinion of Attorney General Stephan that, pursuant to the Kansas open records act, any person had the right to obtain a computerized voter registration list in computer format if the public agency had the capability of providing the record in that format. However, that opinion went on to note the provisions of K.S.A. 1994 Supp.
K.S.A. 1994 Supp.
Without specific authority overriding the KORA, public agencies are not authorized to close an otherwise open public record merely because software created or owned by the public agency was used to create the same or a different record in computerized form. If a record meets the description and definitions set forth in K.S.A.
Portions of the county created documents you provide speak to K.S.A.
You next question why an applicant is required to sign an open records act agreement when the county maintains that these are not public records. We believe that computerized records may be public records if they meet the definition set forth in K.S.A.
Your fifth question concerns the fees connected with the JCIN access to computerized information. The KORA permits a public agency to charge established fees for providing access to or copies of public records. These fees may include staff time and any expenses actually associated with providing the access or copies requested. The fees for access to or copies of public records are not intended to make money for or support the daily operations of the public agency. See K.S.A. 1994 Supp.
In summary, the Kansas open records act requires access to all public records, unless they are permissibly or mandatorily closed pursuant to some specific legal authority. While a county may, through its exercise of home rule, establish a proprietary computerized system which allows access to certain public records on a paid subscription basis, this arrangement does not alter the applicability of the KORA to public records nor does such a proprietary system alter the nature of a public record. A public agency may establish subscription fees and other charges for on-line access to computerized public records through the use of proprietary software. Public records accessed through such a system remain public records, and must also be available upon a record request, at a fee not exceeding the actual cost of their production.
Very truly yours,
CARLA J. STOVALL Attorney General of Kansas
Theresa Marcel Nuckolls Assistant Attorney General
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