May 7, 2001

The Honorable Paul Feleciano, Jr.
State Senator, Twenty-Eighth District
State Capitol, Room 452-E
Topeka, Kansas 66612

Re:

Synopsis:

Dear Senator Feleciano:

As State Senator for the twenty-eighth district you ask whether certain personnel records regarding current and former employees of Prison Health Services, Inc. (PHS) are subject to disclosure under the Kansas Open Records Act⁽¹⁾ (KORA) by virtue of a contract for services between PHS and the Kansas Department of Corrections (DOC).

DOC has contracted with PHS to provide medical and mental health services for inmates in DOC custody. You inform us that you want to obtain a comprehensive list, by name, title, address and telephone number, of all individuals employed by PHS during the current and prior contract periods who left employment of PHS for any reason. This information is not maintained by DOC in any of its records, but rather is maintained by PHS as personnel information.

The declared public policy of this State is that public records shall be open.⁽²⁾ Your question thus calls for a review of the type of records that are considered "public records." The answer is found in the definition section of the KORA:⁽³⁾

"(1) 'Public record' means any recorded information, regardless of form or characteristics, which is made, maintained or kept by or is in the possession of any public agency . . . .

"(2) 'Public record' shall not include records which are owned by a private person or entity and are not related to functions, activities, programs or operations funded by public funds. . . ."

"Public agency" is defined as:

"The state or any political or taxing subdivision of the state or any office, officer, agency or instrumentality thereof, or any other entity receiving or expending and supported in whole or in part by the public funds appropriated by the state or by public funds of any political or taxing subdivision of the state."⁽⁴⁾

However, "public agency" specifically does not include "any entity solely by reason of payment from public funds for property, goods or services of such entity."⁽⁵⁾

PHS is thus not a public agency, and personnel records PHS maintains are not public records under part one of the definition of "public record." Looking at the second part of the definition of "public record," while the services provided by PHS may be considered related to a function, program or operation funded by public funds, PHS's employee records are clearly owned by PHS, a private entity. Only one prong of that section of the definition is met, and thus PHS's personnel records do not qualify as public records under part two of the definition of "public record."

In conclusion, Prison Health Services, a private entity that contracts with the Kansas Department of Corrections to provide medical and mental health services for inmates, is not a public agency. Thus personnel records owned and maintained by Prison Health Services are not public records subject to disclosure under the Kansas Open Records Act.

CJS:JLM:CN:jm

---

^1. K.S.A. 45-216 et seq.

^2. K.S.A. 46-216.

^3. K.S.A. 45-217(f).

^4. K.S.A. 45-217(e)(1).

^5. K.S.A. 45-217(e)(2).