November 5, 1998

ATTORNEY GENERAL OPINION NO. 98- 55

The Honorable Alicia L. Salisbury

State Senator, 20th District

1455 S.W. Lakeside Drive

Topeka, Kansas 66604

Re:	Crimes and Punishments; Kansas Criminal Code; Prohibited Conduct--Crimes Affecting Public Trusts--Unlawful Use of Names Derived From Public Records

Laws, Journals and Public Information--Records Open to Public--Lists of Names and Addresses Derived from Public Records; Exception to Disclosure

Synopsis:	A requester does not violate the statutory prohibition on receiving lists of names from public records when that requester obtains from register of deeds' records names of persons who have sold property pursuant to a contract for deed, and the requester receives such records for the purpose of contacting the persons therein named to offer to purchase their rights to receive payments under the contract for deed, rather than to sell property or services to such persons. Cited herein: K.S.A. 21-3914; 45-220.

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Dear Senator Salisbury:

You request our opinion regarding whether a public official may deny access to public records under K.S.A. 21-3914(a), which prohibits selling, giving or receiving a list of names or addresses to be used for selling or offering to sell any property or service to those listed. Specifically, you inquire about a situation where the requester seeks access to information from a register of deed's office to find people who have sold real estate by a contract for deed. The requester intends to contact the sellers of the land to offer to purchase the sellers' rights under their installment contracts.

K.S.A. 21-3914(a) provides,

"[n]o person shall knowingly sell, give or receive, for the purpose of selling or offering for sale any property or service to persons listed therein, any list of names and addresses contained in or derived from public records. . . ." (Emphasis added).

K.S.A. 45-220(c) allows the agency to require the requester to provide written certification that:

"(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 resided 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.)

In Attorney General Opinion No. 96-68, we concluded as to K.S.A. 21-3914:

"A request for records which does not fall under an exclusion listed in K.S.A. 45-221(a) cannot be denied for the reason that the requester plans to contact those listed for the purpose of purchasing property or services." (Emphasis added.)

We reached this conclusion because K.S.A. 21-3914 is a criminal statute which must be strictly construed, and because the words "selling or offering for sale" are clear and unambiguous.

As the requester about whom you ask intends to use the public records to offer to purchase rights to receive contract payments rather than sell property or services to the listed persons, we likewise conclude that access may not be denied to such a requester. We also note Attorney General Opinion No. 94-132 concluded that because a records custodian is not subject to criminal penalties for good faith reliance on a certification, a records custodian may not deny a requester access to records, which are otherwise open, when the appropriate certification is submitted and the official is acting in good faith.

In summary, a person does not violate K.S.A. 21-3914 by receiving a list of persons who have sold property with a contract for deed for the purpose of contacting such persons to attempt to purchase their rights to receive the payments under such contracts. A register of deeds may not deny such a requester access to otherwise open records.

Very truly yours,

CARLA J. STOVALL

Attorney General of Kansas

Steve Phillips

Assistant Attorney General

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