The Honorable Betty Jo Charlton 1624 Indiana Street Lawrence, Kansas 66044
Dear Representative Charlton:
As representative for the forty-sixth district, you requested our opinion regarding the application of the Kansas open records act, K.S.A.
As you have indicated, the specific request made by a citizen is for the Kansas department of transportation (department) to provide a list "identifying the estimated cost for each parcel (with owner of record listed) and a list identifying the actual amount paid for each parcel (with owner of record listed)." Because the department is clearly a public agency as the term is defined in K.S.A.
The KORA declares it to be the policy of this state that public records of public agencies shall be open for inspection by any person unless otherwise provided by the act, and that the act shall be liberally construed and applied to promote that policy. K.S.A.
K.S.A.
"Except to the extent disclosure is otherwise required by law, a public agency shall not be required to disclose:
. . . .
"(13) The contents of appraisals or engineering or feasibility estimates or evaluations made by or for a public agency relative to the acquisition of property, prior to the award of formal contracts therefore." (Emphasis added).
As you indicate, the south Lawrence trafficway has apparently been treated by the department as two distinct projects — one including work on the eastern leg of the trafficway, upon which there have been no land purchases and the final design has not been made, and the other involving work on the western leg of the trafficway upon which land has been purchased, contracts have been executed, and work has indeed begun. The difference in treatment for the two legs of the trafficway is significant if they truly are two separate projects. Because no formal contracts have been awarded, the department is not required to disclose information on the acquisition of property for the eastern leg under K.S.A.
The department argues that the trafficway is one project and has been treated as such by the department since its inception. As a result, the department argues that until the entire project has been finalized, that is formal contracts have been let for all segments, the records of the type requested by the citizen should remain confidential and protected from disclosure by K.S.A.
Although your request specifically concerned the application of K.S.A.
The department indicates that the files requested by the citizen include "appraisals, negotiation notes, memorandum of various opinions, memorandum substantiating purchase, information received from landowners, contracts, vouchers and more." The department's internal communications are not required to be disclosed in certain circumstances according to K.S.A.
"Except to the extent disclosure is otherwise required by law, a public agency shall not be required to disclose:
. . . .
"(20) Notes, preliminary drafts, research data in the process of analysis, unfunded grant proposals, memoranda, recommendations or other records in which opinions are expressed or policies or actions are proposed, except that this exemption shall not apply when such records are publicly cited or identified in an open meeting or in an agenda of an open meeting."
The department may separate or delete such information and disclose the remaining information under K.S.A.
Another argument made by the Kansas department of transportation is that K.S.A.
"Except to the extent disclosure is otherwise required by law, a public agency shall not be required to disclose:
. . . .
"(2) Records which are privileged under rules of evidence, unless the holder of the privilege consents to the disclosure."
The department states that this exception would seemingly apply in situations where litigation has been filed. The statutory privileges include lawyer-client, physician-patient, husband-wife, and priest-penitent. K.S.A.
A final argument made by the department is that K.S.A.
"Except to the extent disclosure is otherwise required by law, a public agency shall not be required to disclose:
"(1) Records the disclosure of which is specifically prohibited or restricted by federal law, state statute or rule of the Kansas supreme court or the disclosure of which is prohibited or restricted pursuant to specific authorization of federal law, state statute or rule of the Kansas supreme court to restrict or prohibit disclosure."
The department correctly points out that Kansas supreme court rules 225 and 226, governing the discipline of attorneys, are included within this exception. The department specifically calls attention to the confidentiality provisions in each of these rules. The wording of the pertinent portions of each of these rules (Canon 4 and Rule 1.6 respectively) is virtually identical and requires an attorney to protect the confidences of his or her client. To fall under the confines of these rules, a communication between an attorney and client "must be of a confidential character, and so regarded, at least by the client, at the time, and must relate to a matter which is in its nature private and properly the subject of confidential disclosure."City of Wichita v. Chapman,
In sum, the Kansas department of transportation has, for all practical purposes, treated the eastern and western legs of the south Lawrence trafficway as two separate projects. Because formal contracts have not been executed therefor, the department is not required to disclose information on the eastern leg of the trafficway under K.S.A.
Very truly yours,
CARLA J. STOVALL Attorney General of Kansas
Nobuko K. Folmsbee Assistant Attorney General
CJS:JLM:NKF:bas