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Records management and the law

Introduction

Effective records management requires knowledge of all legislation affecting agency record keeping responsibilities. Awareness of the state and federal statutes and regulations pertaining to records management ensures compliance with applicable laws.

This section of the manual includes the state statutes and administrative regulations that agencies encounter most often during the course of business. Four major laws govern the creation, use, and disposition of state government records:

In addition to the four principal records laws, specific records management references are scattered throughout Kansas Statutes Annotated (K.S.A.) and Kansas Administrative Regulations (K.A.R.). The entire text of government records related statutes and regulations is cited for convenience of reference. There are some agencies which must comply with legislation specific to their mission and statutory authority. Consult your agency legal department or legal counsel at the Attorney General's Office about these laws and how they affect the management of records.

(1) Any change in planned expenditures for an information technology project that would result in the total authorized cost of the project being increased above the currently authorized cost of such project, whichever is lower;

(2) any change in the scope of an information technology projects ,as such scope was presented and reviewed by the joint committee or the chief information technology officer to whom the project was submitted pursuant to K.S.A. Supp. 75-7509 and amendments thereto; or

(3) any change in the proposed use of any new or replacement information technology equipment or in the use of any existing information technology equipment that has been significantly upgraded.

(e) "Joint committee" means the joint committee on information technology.

(f) "Judicial agency" means any state agency in the judicial branch of government.

(g) "Legislative agency" means any state agency in the legislative branch of government.

(h) "Project" means a planned series of events or activities that is intended to accomplish a specified outcome in a specified time period, under consistent management direction within a state agency or shared among two or more state agencies, and that has an identifiable budget for anticipated expenses.

(i) "Project completion" means the date and time when the head of a state agency having primary responsibility for an information technology project certifies that the improvement being produces or altered under the project is ready for operational use.

(j) "Project start" means the date and time when a state agency begins a formal study of a business process or technology concept to assess the needs of the state agency, determined project feasibility or prepares an information technology project budget estimate under K.S.A. Supp. 75-7509 and amendments thereto.

(k) "State agency" means any state office or officer, department, board, commission, institution or bureau, or any agency, division or unit thereof.

 

History: L. 1998, ch. 182, sec. 2; May 21.

75-7202 Information technology executive council; membership and organization.

75-7202. Information technology executive council; membership and organization.

 

(a) There is hereby established the information technology executive council which shall be attached to the department of administration for purposes of administrative functions.

(b) The council shall be composed of 17 voting members as follows: The secretary of administration; two cabinet agency head; one non-cabinet agency head; the director of the budget; the executive chief information technology and the judicial administrator of the Kansas supreme court; the executive director of the Kansas board of regents; the commission of education; one representative of cities; one representative of counties; the network manager of the information network of Kansas (INK); and three representatives from the private sector who are chief executive officers or chief information technology officers. The chief information technology architect shall be a nonvoting member of the council. The two cabinet agency heads, the non-cabinet agency head, the representative of cities, the representative of counties and the representatives from the private sector shall be appointed by the governor for a term not to exceed months. Upon expiration of an appointed members' term, the member shall continue to hold office until the appointment of a successor. Non-appointed members shall serve ex officio.

(c) The secretary of administration shall serve as the chairperson the council.

(d) The council shall hold meetings and hearings in the city of Topeka or at such other places as the council designates, on call of the chairperson or on request of four or more members.

(e) Members of the council may not appoint an individual to represent them on the council and only members of the council may vote.

(f) Members of the council shall not be eligible fro compensation, subsistence allowances, mileage or other expenses as provided in K.S.A. 75-3223 and amendments thereto for attendance at any meeting of the council or any subcommittee meeting authorized by the council, except that agencies may pay subsistence, mileage and other expenses to their representatives on the council.

 

History: L. 1998, ch. 182, sec. 2; May 21. Source or Prior Law: 75-4740

75-7203 Same; powers and duties

75-7203. Same; powers and duties.

 

(a) The information technology executive council is hereby authorized to adopt such policies and rules and regulations as necessary to implement, administer and enforce the provisions of this act.

(b) The council shall:

(1) Adopt:

(A) Information technology resource policies and procedures and project management methodologies for all state agencies;

(B) an information technology architecture, including telecommunications systems, networks and equipment, that covers all state agencies;

(C) standards for data management for all state agencies; and

(D) a strategic information technology management plan for the state;

(2) provide direction and coordination for the application of the state's information technology resources;

(3) designate the ownership of information resource processes and the lead agency for implementation of new technologies and networks shared by multiple agencies in different branches of state government; and

(4) perform such other functions and duties as necessary to carry out the provisions of this act.

 

History: L. 1998, ch. 182, sec. 3; May 21.

75-7204 Chief information technology architect

75-7204 Chief information technology architect.

 

(a) There is hereby established, within and as a part of the department of administration, the office of chief information technology architect, the head of which shall be the chief information technology architect. Under the supervision of the secretary of administration, the chief information technology architect shall administer the office of chief information technology architect. The chief information technology architect shall be in the unclassified service under the Kansas civil service act, shall be appointed by the secretary of administration, subject to approval of the governor and shall receive compensation in the amount fixed by the secretary of administration, subject to approval of the governor.

(b) The chief information technology architect shall:

(1) Propose to the information technology executive council:

(A) Information technology resource policies and procedures and project management methodologies for all state agencies;

(B) an information technology architecture, including telecommunication systems, networks and equipment, that covers all state agencies;

(C) standards for data management for all state agencies; and

(D) a strategic information technology management plan for the state;

(2) serve as secretary to the information technology executive council; and

(3) perform such other functions and duties as provided by law or as directed by the secretary of administration.

 

History: L. 1998, ch. 182, sec. 4; May 21. Source or Prior Law: 75-4742, 75-4743

75-7205 Executive chief information technology officer

75-7205. Executive chief information technology officer.

 

(a) There is hereby established within and as a part of the department of administration the position of executive chief information technology officer. The executive chief information technology officer shall be in the unclassified service under the Kansas civil service act, shall be appointed by the secretary of administration, subject to approval of the governor, and shall receive compensation in an amount fixed by the secretary of administration, subject to approval of the governor. The executive chief information technology officer shall maintain a presence in any cabinet established by the governor and shall report to both the governor and the secretary of administration.

(b) The executive chief information technology officer shall:

(1) Review and consult with each executive agency regarding information technology plans, deviations from the state information technology architecture, information technology project estimates and information technology project changes and overruns submitted by such agency pursuant to K.S.A 1998 Supp. 75-7209 and amendments thereto to determine whether the agency has complied with:

(A) The information technology resource policies and procedures and project management methodologies adopted by the information technology executive council;

(B) the information technology architecture adopted by the information technology executive council;

(C) the standards for data management adopted by the information technology executive council; and

(D) the strategic information technology management plan adopted by the information technology executive council;

(2) report to the chief information technology architect all deviations from the state information architecture that are reported to the executive information technology officer by executive agencies;

(3) submit recommendations to the division of the budget as to the technical and management merit of information technology project estimates and information technology projects changes and overruns submitted by executive agencies pursuant to K.S.A. 1998 Supp. 75-7209 and amendments thereto, based on the determinations pursuant to subsection (b)(1);

(4) monitor executive agencies' compliance with:

(A) The information technology resource policies and procedures and project management methodologies adopted by the information technology executive council;

(B) the information technology architecture adopted by the information technology executive council;

(C) the standards for data management adopted by the information technology executive council; and

(D) the strategic information technology management plan adopted by the information technology executive council;

(5) coordinate implementation of new information technology among executive agencies and with the judicial and legislative chief information technology officers;

(6) designate the ownership of information resource processes and the lead agency for implementation of new technologies and networks shared by multiple agencies within the executive branch of state government; and

(7) perform such other functions and duties as provided by law or as directed by the secretary of administration.

 

History: L. 1998, ch. 182, sec. 5; May 21.

75-7206 Judicial chief information technology officer

75-7206. Judicial chief information technology officer.

 

(a) There is hereby established within and as a part of the state judicial administrator the position of judicial chief information technology officer. The judicial chief information technology officer shall be appointed by the judicial administrator, subject to approval of the chief justice, and shall receive compensation in an amount fixed by the judicial administrator, subject to approval of the chief justice.

(b) The executive chief information technology officer shall:

(1) Review and consult with each judicial agency regarding information technology plans, deviations from the state information technology architecture, information technology project estimates and information technology project changes and overruns submitted by such agency pursuant to K.S.A 1998 Supp. 75-7209 and amendments thereto to determine whether the agency has complied with:

(A) The information technology resource policies and procedures and project management methodologies adopted by the information technology executive council;

(B) the information technology architecture adopted by the information technology executive council;

(C) the standards for data management adopted by the information technology executive council; and

(D) the strategic information technology management plan adopted by the information technology executive council;

(2) report to the chief information technology architect all deviations from the state information architecture that are reported to the judicial information technology officer by judicial agencies;

(3) submit recommendations to the judicial administer as the technical and management merit of information technology project estimates and information technology projects changes and overruns submitted by judicial agencies pursuant to 1998 Supp. 75-7209 and amendments thereto, based on the determinations pursuant to subsection (b)(1);

(4) monitor judicial agencies' compliance with:

(A) The information technology resource policies and procedures and project management methodologies adopted by the information technology executive council;

(B) the information technology architecture adopted by the information technology executive council;

(c) the standards for data management adopted by the information technology executive council; and

(D) the strategic information technology management plan adopted by the information technology executive council;

(5) coordinate implementation of new information technology among judicial agencies and with the executive and legislative chief information technology officers;

(6) designate the ownership of information resource processes and the lead agency for implementation of new technologies and networks shared by multiple agencies within the judicial branch of state government; and

(7) perform such other functions and duties as provided by law or as directed by the judicial administrator.

 

History: L. 1998, ch. 182, sec. 6; May 21.

75-7207 Legislative chief information technology officer

75-7207. Legislative chief information technology officer.

 

(a) There is hereby established the position of legislative chief information technology officer under the legislative coordinating council.

(b) The legislative chief information technology officer shall be appointed by the legislative coordinating council. The joint committee may recommend one or more persons for consideration by the legislative coordinating council in making the appointment.

(c) The legislative chief information technology officer shall receive such compensation as determined by the legislative coordinating council and may be removed by a vote of five members of the legislative coordinating council taken at any regular meetings of the council.

(d) The legislative chief information technology office shall receive expenses and allowances for in-state and out-of-state travel as in provided by law for members of the legislature. The provisions of K.S.A. 75-3208 and amendments thereto shall not apply to any such travel.

(e) The legislative chief information technology office shall be in the unclassified service under the Kansas civil service act.

 

History: L. 1998, ch. 182, sec. 7; May 21.

75-7208 Same; powers and duties

75-7208. Same; powers and duties.

 

The legislative chief information technology officer shall:

(a) Review and consult with each legislative agency regarding information technology plans, deviations from the state information technology architecture, information technology project estimates and information technology project changes and overruns submitted by such agency pursuant to 1998 Supp. 75-7209 and amendments thereto to determine whether the agency has complied with :

(1) The information technology resource policies and procedures and project management methodologies adopted by the information technology executive council;

(2) the information technology architecture adopted by the information technology executive council;

(3) the standards for data management adopted by the information technology executive council; and

(4) the strategic information technology management plan adopted by the information technology executive council;

(b) report to the chief information technology architect all deviations from the state information architecture that are reported to the legislative information technology officer by legislative agencies;

(c) submit recommendations to the legislative coordinating council as to the technical and management merit of information technology project estimates and information technology project changes and overruns submitted by legislative agencies pursuant to 1998 Supp. 65-7209 and amendments thereto, based on the determinations pursuant to subsection (a);

(d) monitor legislative agencies' compliance with:

(1) The information technology resource polices and procedures and project management methodologies adopted by the information technology executive council;

(2) the information technology architecture adopted by the information technology executive council;

(3) the standards for data management adopted by the information technology executive council; and

(4) the strategic information technology management plan adopted by the information technology executive council;

(e) coordinated implementation of new information technology among legislative agencies and with the executive and judicial chief information technology officers;

(f) designated the ownership of information resource processes and the lead agency for implementation of new technologies and networks hared by multiple agencies within the legislative branch of state government:

(g) serve as staff of the joint committee; and

(h) perform such other functions and duties and provided by law or as directed by the legislative coordinating council or the joint committee.

 

History: L. 1998, ch. 182, sec.8: May 21.

75-7209 Information technology project; procedures

75-7209. Information technology project; procedures.

 

(a) Whenever an agency proposes an information technology project, such agency shall prepare and submit to the chief information technology officer of the branch of state government of which the agency is a part of a project budget estimate therefor, and for each amendment or revision thereof, in accordance with this section. Each information technology project budget estimate shall be in such form as required by the director of the budget, in consultation with the chief information technology architect, and by this section. In each case, the agency shall prepare and include as a part of such project budget estimate a plan consisting of a written program statement describing the project. The program statement shall:

(1) Include a detailed description of and justification for the project including: (A) An analysis of the programs, activities and other needs and intended uses for the additional or improved information technology;

(B) a statement of project scope including identification of the organizations and individuals to be affected by the project and definition of the functionality to result from the project; and

(C) an analysis of the alternative means by which such information technology needs and used could be satisfied;

(2) describe the tasks and schedule for the project and for each phase of the project, if the project is be completed in more than one phase;

(3) include a financial plan showing:

(A) The proposed source of funding and categorized expenditures for each phase of the project; and

(B) cost estimates for any needs analyses or other investigations, consulting or other professional services, computer programs, data, equipment, buildings or major reports or improvement to building and other items or services necessary for the project; and

(4) include a cost-benefit statement based on an analysis of qualitative as well as financial benefits.

(b) (1) Before one or more state agencies proposing an information technology project begin implementation of the project, the project plan including the architecture and the cost-benefit analysis, shall be approved by the head of each state agency proposing the project and by the chief information technology officer of each branch of state government of which the agency or agencies are a part. Approval of those projects that involve telecommunications services shall also be subject to the provisions of K.S.A. 75-4709, 75-4710 and 75-4712, and amendments thereto.

(2) All specifications for bids or proposals related to an approved information technology project of one or more state agencies shall be reviewed by the chief information technology officer of each branch of state government of which the agency or agencies are a part.

(c) Annually at the time specified by the chief information technology officer of the branch of state government of which the agency is a part, each agency shall submit to such officer:

(1) A copy of a three-year strategic information technology plan that set forth the agency's current and future information technology needs and utilization plans for the next three ensuring fiscal years, in such form and containing such additional information as prescribed by the chief information technology officer; and

(2) any deviations from the state information technology architecture adopted by the information technology executive council.

(d) The provisions of this section shall not apply to the information network of Kansas (INK).

 

History: L. 1998, ch. 182, sec. 9; May 21.

75-7210 Same; reports to legislative branch

75-7210. Same; reports to legislative branch.

 

(a) Not later than July 1 of each year, the executive judicial and legislative chief information technology officers shall submit to the joint committee and to the legislative research department all information technology project budget estimates and amendments and revisions thereto, all three-year plans and all deviations from the state information technology architecture submitted to such officers pursuant to 1998 Supp. 75-7209 and amendments thereto. The legislative chief information technology officer shall review all such estimates and amendments and revisions thereto, plans and deviations and shall make recommendations to the joint committee regarding the merit thereof and appropriations therefore.

(b) The executive and judicial chief information technology officers shall report to the legislative chief information technology officer, at times agreed upon by the three officers:

(1) Progress regarding implementation of information technology projects of state agencies within the executive and judicial branches of state government; and

(2) all proposed expenditures, for the current fiscal year and for ensuing fiscal years.

 

History: L. 1998, ch. 182, sec. 10; May 21.

75-7211 Same; legislative oversight

75-7211. Same; legislative oversight.

 

(a) The legislative chief information technology officer under the direction of the joint committee, shall monitor state agency execution of information technology projects and, at times agreed upon by the three chief information technology officers, shall report progress regarding the implementation of such projects and all proposed expenditures for the current fiscal year and for ensuring fiscal years.

(b) The head of a state agency with primary responsibility for an information technology project may authorize or approve, with out prior consultation with the joint committee, any change in planned expenditures for an information technology project that would result in the total cost of the project being increased above the currently authorized cost of such project but that increases the total cost of such project by less than the lower of either $1,000,00 or 10% of the currently authorized cost and any change in planned expenditures for an information technology project involving a cost reduction, other than a change in the proposed use of any new or replacement information technology equipment or in the use of any existing information technology equipment that has been significantly upgraded.

(c) The head of a state agency with primary responsibility for an information technology project shall not authorize or approve, without first advising and consulting with the joint committee any information technology project change or overrun. The joint committee shall report all such changes and overruns to the senate standing committee on ways and means and the house standing committee on appropriations.

 

History: L. 1998, ch. 182, sec. 11; May 21.

75-7212 Abolition of KIRC and CIA

75-7212. Abolition of KIRC and CIA.

 

(a) The Kansas information resources council established by K.S.A. 75-4740 and the office of the chief information architect established by K.S.A. 75-4742 are hereby abolished.

(b) The unexpended budgeted balance of any appropriation for the Kansas information resources council as a result of any abolishment by this section shall be and is hereby transferred to the information technology executive council created by this act. The unexpended budgeted balance of any appropriation for the position of chief information architect as a result of any abolishment by this section shall be and is hereby transferred to the legislative coordinating council - operations account.

(c) Whenever the Kansas information resources council is referred to or designated by a statue, contract or other document, such reference or designation shall be deemed to apply to the information technology executive council created by this act. Whenever the position of chief information architect or the office of the chief information architect is referred to or designated by a statue, contract or other document, such reference or designation shall be deemed to apply to the position of chief information technology architect or the office of the chief information technology architect created by this act or to the position of executive chief information technology officer, as determined appropriate in accordance with the provisions of this act.

(d) The information technology executive council created by this act shall succeed to all property and records that were used for, or pertain to, the performance of the powers, duties and functions of the Kansas information resources council abolished by this act. The office of the chief information technology architect created by this act shall succeed to all of the powers, duties and functions of the office of the chief information architect abolished by this act. Any conflict as to the proper disposition of such property or records arising under this section and resulting from the transfer or abolishment of any existing state agency, or the powers, duties and functions thereof, shall be determined by the governor, whose decision shall be final.

(e) Any conflict as to the disposition of any power, function or duty as a result of any abolishment, transfer, attachment or other change made by this act, or under authority of this act, shall be resolved by the governor, and the decision of the governor shall be final.

(f) No suit, action, or other proceeding, judicial or administrative lawfully commence, or that could have been commenced, by or against the Kansas information resources council, or by or against the office of the chief information architect or the chief information architect in the official duties, shall abate by reason of the provisions of this act. The court may allow any such suit, action or other proceeding to maintained by or against the information technology executive council, the office of the chief information technology architect or the chief information technology architect.

(g) No criminal action commenced or that could have been commenced by the state shall abate by the taking effect of this act.

 

History: L. 1998, ch. 182, sec. 12; May 21.

46-2101 Joint Committee on Information Technology

46-2101. Establishment of joint committee.

 

(a) There is hereby established the joint committee on information technology which shall be within the legislative branch of state government and which shall be composed of three senators and three members of the house of representatives. One of the senate members shall be appointed by the president of the senate, one of the senate members shall be appointed by the minority leader of the senate and one of the senate members shall be appointed by the chairperson of the committee on ways and means of the senate. One of representative members shall be appointed by the speaker of the house of representatives, on of the representative members shall be appointed by the minority leader of the house of representatives and one of the representative members shall be appointed by the chairperson of the committee on appropriations of the house of representatives. The members of the joint committee on information technology and the chairperson and vice-chairperson serving in such capacities on the effective date of this act shall continue serving as members and in such capacities, respectively, subject to the other provisions of this section.

(b) All members of the joint committee on information technology shall serve for terms ending on the first day of the regular legislative session in odd-numbered years. The joint committee shall organize annually and elect a chairperson and vice-chairperson in accordance with this subsection. The chairperson and vice-chairperson serving on the effective date of this act shall continue to serve in such capacities through June 30, 1998, On and after July 1, 1998, and until the first day of the 1999 regular legislative session, the chairperson shall be one of the senate members of the joint committee elected by the members of the joint committee and the vice-chairperson shall be one of the representative members of the joint committee elected by the members of the joint committee. Thereafter, on and after the first day of the regular legislative session in odd-numbered years, the chairperson shall be one of the representative members of the joint committee elected by the members of the joint committee and the vice-chairperson shall be one of the senate members elected by the members of the joint committee and, after the first day of the regular legislative session in even-numbered years, the chairperson shall be one of the senate members of the joint committee elected by the members of the joint committee and the vice-chairperson shall be one of the representative members of the joint committee elected by members of the joint committee. The chairperson and vice-chairperson the joint committee shall serve in such capacities until the first day of the regular legislative session in the ensuring year. The vice-chairperson shall exercise all of the powers of the chairperson in the absence of the chairperson. If a vacancy occurs in the office of chairperson or vice-chairperson, a member of the joint committee, who is member of the same house as the member who vacated the office, shall be elected by the members of the joint committee to fill such vacancy.

(c) A quorum of the joint committee on information technology shall be four. All actions of the joint committee shall be taken by a majority of all of the members of the joint committee.

(d) The joint committee on information technology may meet at any time and at any place within the state on the call of the chairperson.

(e) The provisions of the acts contained in article 12 of chapter 46 of the Kansas Statutes Annotated, and amendments thereto, applicable to special committees shall apply to the joint committee on information technology to the extent that the same do no conflict with specific provisions of this applicable to the joint committee.

(f) In accordance with K.S.A. 46-1204 and amendments thereto, the legislative coordinating council may provide for such professional services as may be requested by the joint committee on information technology.

(g) The joint committee on information technology may introduce such legislation as it deems necessary in performing its functions.

(h)(1) On the effective date of this act the joint committee on computers and telecommunications shall be and is hereby officially designated as the joint committee on information technology.

(2) On and after the effective date of this act, whenever the joint committee on computers and telecommunications, or works of like effect, is referred to or designated by a statute, contract or other documents created before the effective date of this act, the reference or designation shall mean and apply to the joint committee on information technology.

(3) Nothing in this act shall be construed as abolishing or reestablishing the joint committee on computers and telecommunications.

 

History: L. 1992, ch. 153, sec. 1; L. 1998, ch. 182, sec. 13; May 21.

46-2102 Same; powers and duties; annual report

46-2102. Same; powers and duties; annual report.

 

In addition to other powers and duties authorized or prescribed by law or by the legislative coordinating council, the joint committee on information technology shall:

(a) Study the use by state agencies and institutions of computers, telecommunications and other information technologies;

(b) review new governmental computer hardware and software acquisition, information storage, transmission, processing and telecommunications technologies proposed by state agencies and institutions, and the implementation plans therefore, including all information technology project budget estimates and three-year strategic information technology plans that are submitted to the joint committee pursuant to section 10 and amendments thereto:

(c) make recommendations on all such implementation plans, budget estimates and three-year plans to the ways and means committee of the senate and committee on appropriations of the house of representatives;

(d) study the progress and results of all newly implemented governmental computer hardware and software, information storage, transmission, processing and telecommunications technologies of state agencies and institutions including all information technology projects for state which have been authorized or for which appropriations have been approved by the legislature; and

(e) make an annual report to the legislative coordinating council as provided in K.S.A. 46-1207 and amendments thereto and such special reports to committees of the house of representatives and senate as are deemed appropriated by the joint committee.

 

History: L. 1992, ch. 153, sec. 2; L. 1998, ch. 182, sec. 14; May 21.

75-4703 Information Systems and Communications

75-4703. Rules and regulations concerning rates and charges; priorities for services, standards for data submission and security.

 

The secretary of administration may adopt rules and regulations as provided in K.S.A. 75-3706, and amendments thereto, relating to the following:

(a) Establishment of rates and charges for services performed by the division of information systems and communications for any other division, department, state agency or governmental unit. Such rates and charges shall be maintained by a cost system in accordance with generally accepted accounting principles. In determining cost rates for billing to agencies or governmental units, overhead expenses shall include but not be limited to light, heat, power, insurance, labor and deprecation. Billings shall include direct and indirect costs and shall be based on the foregoing cost accounting practices.

(b) For determination of priorities for services performed by the division of information systems and communications, including authority to decline new projects under specified conditions.

(c) Specification of standards for submission of data to be processed by the division of information systems and communications and the programs for processing the data, including authority to decline to process computer programs and projects not conforming to published standards. Such standards and measures shall be consistent with the standards and polices adopted by the information technology executive council under section 3 and amendments thereto.

 

History: L. 1972, ch. 332, sec. 21; L. 1974, ch. 399, sec. 7; L. 1976, ch. 396, sec. 10; L. 1980, ch. 284, sec. 23; L. 1983, ch. 291, sec. 3; L. 1984, ch. 323, sec. 6; L. 1992, ch. 228, sec. 2; L. 1998, ch. 182, sec. 15; May 21.

K.S.A. 75-4709 Telecommunications services of certain state agencies; extension to certain private, nonprofit agencies or governmental entities; records of services

75-4709. Telecommunications services of certain state agencies; extension to certain private, nonprofit agencies or governmental entities; records of services.

 

(a) The secretary of administration shall provide for and coordinate all telecommunications services for all divisions, department and agencies of the state pursuant to policies established by the information technology executive council. The secretary of administration shall have the authority to control the acquisitions, retention and use of all telecommunications services for all divisions, departments and agencies of the state, and to develop and review plans and specifications for telecommunications services throughout the state.

(b) The secretary of administration, when feasible, may enter into agreements with any entity defined in this subsection extending to such entity the use of all intercity telecommunications facilities and services under the control of the secretary. As used in this subsection, an "entity" means:

(1) Any governmental unit, including any state agency, taxing subdivision of the state or municipality; or

(2) any hospital or nonprofit corporation which the secretary determines to be performing any state function on an ongoing basis through agreement or otherwise, or any function which will assist a governmental unit in attaining an objective or goal, bearing a valid relationship to powers and functions of such unit.

(c) Every record made, maintained or kept by the secretary of administration or the division of information systems and communications, or any agency or instrumentality thereof, which related to the acquisition, retention or use of telecommunications services provided to any division, department or agency of the state, state officer or governmental unit and which pertains to individually identifiable individuals using such telecommunications services shall constitute for purposes of the open records act a record of the division, department or agency of the state, state officer or governmental unit to which such records related. The official custodian of such records fro the purposes of the open records act shall be the official custodian of the records of such division, department or agency of the state, state officer or governmental units.

 

History: L. 1974, ch. 399, sec. 1; L. 1978, ch. 362, sec. 1; L. 1992, ch. 228, sec. 3; L. 1994, ch. 340, sec. 9; L. 1996, ch. 268, sec. 13; L. 1998, ch. 182, sec. 17; May. 21

75-5147 Automated tax system; acquisition, negotiated contract; payment, fee based on collection authorized; reports of collections to legislative committees

75-5147. Automated tax system; acquisition, negotiated contract; payment, fee based on collection authorized; reports of collections to legislative committees.

 

The secretary of revenue is hereby authorized to enter into contracts to acquire automated tax systems, including computer hardware and software therefor, for use in the registration of taxpayers, processing of remittances and returns, and collection of delinquent taxes and any interest and penalties thereon. Any contracts entered into between the secretary of revenue and vendors of automated tax systems shall provide

(1) for payment of fees for the automated tax system on the basis of a percentage of the increase in the amount of taxes, interest and penalties collected which is attributable to the implementation of the automated tax systems as specified by the joint consensus of the director of the budget and the director of the legislative research department under this section or

(2) for payment of fees for the automated tax system on a fixed fee contract basis, such fees to be paid from the increase in the amount of taxes, interest and penalties collected which is attributable to the implementation of the automated tax systems as specified by the joint consensus of the director of the budget and the director of the legislative research department under this section. All contracts entered into under this section shall be entered in pursuant to procurement negotiating committee procedure as provided in K.S.A. 75-37,102 and amendments thereto. Prior to publishing or distributing a request for proposal, such request for proposals shall be reviewed by the joint committee on information technology. During each regular session of the legislature, the secretary of revenue shall submit a report to the committee on ways and means of the senate and the committee on appropriations of the house of representatives. Such report shall include detailed information on the costs and benefits of implementing automated tax systems during the fiscal year immediately preceding the submission of the report. The report required hereunder shall be made annually until two complete fiscal years have elapsed following full implementation of automated tax systems by the secretary of revenue. In addition, the director of the budget and the director of the legislative research department shall prepare annually a joint consensus on the mount of increased tax, interest and penalty collections which are attributable to the automated tax system and shall report their finding during each regular session of the legislature to the committee on ways and means of the senate and the committee on appropriations of the house of representatives. Nothing in this section shall prohibit the secretary of revenue from acquiring any goods or services through appropriations for any department of revenue function or program not specifically included in any contract entered into pursuant to this section.

 

History: L. 1988, ch. 437, sec. 1; L. 1993, ch. 290, sec. 1; L. 1998, ch. 182, sec. 18; May 21.

76-3,100 University of Kansas procedures for acquisitions of data processing hardware and software for university hospital information systems; report

76-3,100 University of Kansas procedures for acquisitions of data processing hardware and software for university hospital information systems; report.

 

Each acquisition of data processing hardware or software by the university of Kansas medical center for the university hospital information systems shall be exempt from the provisions of K.S.A. 75-4705, 75-4706, 75-4704, 75-4709 and 75-3739 and amendments thereto and shall not be subject to approval under any statute other than those contained in article 3 or article 7 of chapter 76 of the Kansas Statutes annotated. In addition to other procedures, the university of Kansas medical center is hereby authorized to acquire data processing hardware and software for the university of Kansas medical center shall file with the director of purchases of the department of administration and shall update periodically a plan for future acquisitions under this section. The university of Kansas medical center shall submit a written report in each calendar quarter to the secretary of administration, the to the chairperson of the senate committee on ways and means and the house of representatives committee on appropriations and to the joint committee on information technology on all contracts for acquisition of data processing hard and software entered into under this section during such calendar quarter.

 

History: L. 1995, ch. 151, sec. 1; L. 1998, ch. 182, sec. 19; May 21.

75-2935f Classified and unclassified services

75-2935f . Classified and unclassified services. [ See Revisor's Note]

 

The civil service of the state of Kansas is hereby divided into the unclassified and the classified services.

(1) The unclassified service comprises positions held by state officer or employees who are:

(a) Chosen by election or appointment to fill an elective office;

(b) members of boards and commissions, heads of departments required by law to be appointed by the governor or any other elective officers, and the executive or administrative heads of offices, departments, divisions and institutions specifically established by law;

(c) except as otherwise provided under this section, one personal secretary to each elective officer of this state, and in addition thereto, 10 deputies, clerks or employees designated by such elective officer;

(d) all employees in the office of the governor;

(e) officers and employees of the senate and house of representatives of the legislature and of the legislative coordinating council and all officers and employees of the office of revisor of statutes, of the legislative research department, of the division of legislative administrative services, of the division of post audit and the legislative counsel;

(f) chancellor, president, deans, administrative officers, student health service physicians, pharmacists, teaching and research personnel, health care employees and student employees in the institutions under the state board of regents, the executive officer of the board of regents and the executive officer's employees other than clerical employees, and, at the discretion of the state board of regents, directors or administrative officers of departments and divisions of the institution and county extension agents, except that this subsection (1)(f) shall not be construed to include the custodial, clerical or maintenance employees, or any employee performing duties in connection with the business operations of any such institution, except administrative officers and directors; as used in the this subsection (1)(f), "health care employees" means employees of the university of Kansas medical center who provide health care services at the university of Kansas medical center and who are medical technicians or technologist or respiratory therapists, who are licensed professional nurses or licensed practical nurses, or who are in job classes which are designated for this purpose by the chancellor of the university of Kansas upon finding by the chancellor that such designation is required for the university of Kansas medical center to recruit or retain personnel for positions in the designated job classes; and employees of any institution under the state board of regents who are medical technologist;

(g) operations, maintenance and security personnel employed to implement agreements entered into by the adjutant general and the federal national guard bureau, and officers and enlisted person in the national guard and naval militia;

(h) persons engaged in public work for the state but employed by contractors when the performance of such contract is authorized by the legislature or other competent authority;

(i) persons temporarily employed or designated by the legislature or by a legislative committee or commission or other competent authority to make or conduct a special inquiry, investigation, examination or installation;

(j) officers and employees in the office of the attorney general and special counsel to state department appointed by the attorney general, except that officers and employees of the division of the Kansas bureau of investigation shall be in the classified or unclassified services as provided in K.S.A. 75-711 and amendments thereto;

(k) all employees of courts;

(l) client, patient and inmate help in any state facility or institution;

(m) all attorneys for boards, commissions and departments;

(n) the secretary and assistant secretary of the Kansas state historical society;

(o) physician specialists dentist, dental hygienists, pharmacists, medical technologists and long term care workers employed by the department of social and rehabilitation services;

(p) physician specialists, dentists, and medical technologists employed by any board, commission or department or by any institution under the jurisdiction thereof;

(q) student employees enrolled in public institutions of higher learning;

(r) administrative officers, directors and teaching personnel of the state board of education and the state department of education and of any institution under the supervision and control of the state board of education, except that this subsection (1)(r) shall not be construed to include the custodial, clerical or maintenance employees, or any employees performing duties in connection with the business operations of any such institution, except administrative officer and directors;

(s) all officers and employees in the office of the secretary of state;

(t) one personal secretary and one special assistant to the following: The secretary of administration, the secretary on aging, the secretary of agriculture, the secretary of commerce and housing, the secretary of corrections, the secretary of health and environment, the superintendent of the Kansas highway patrol, the secretary of human resources, the secretary of revenue, the secretary of social and rehabilitation services, the secretary of transportation and the secretary of wildlife and parks;

(u) one personal secretary on special assistant to the chancellor and presidents of institutions under the state board of regents;

(v) one personal secretary on special assistant to the executive vice chancellor of the university of Kansas medical center;

(w) one public information officer and one chief attorney for the following: The department of administration, the department on aging, the department of agriculture, the department of commerce and housing, the department of corrections, the department of health and environment, the department of human resources, the department of revenue, the department of social and rehabilitation services, the department of transportation and the Kansas department of wildlife and parks;

(x) civil service examination monitors;

(y) one executive director, one general counsel and one director of public affairs and consumer protection in the office of the state corporation commission;

(z) specifically designated by law as being the unclassified service;

(aa) all officers and employees of Kansas, Inc. and the Kansas technology enterprise corporation and

(bb) any position that is classified as a position in the information resource manager job class series, that is the chief position responsible for all information resources management for a state agency, and that becomes vacant on or after the effective date of this act. Nothing in this section shall affect the classified status of any employee in the classified services who is employed on the date immediately preceding the effective date of this act in any position that is a classified position in the information resource manager job class series and the unclassified status as prescribed by this subsection shall apply only to a person appointed to any such position on or after the effective date of this act that is the chief positions responsible for all information resources management for a state agency.

(2) The classified service comprises all positions now existing or hereby created which are not included in the unclassified service. Appointments in the classified service shall be made according to merit and fitness from eligible pools which so far as practicable shall be competitive. No person shall be appointed, promoted, reduced or discharged as an officer, clerk, employee or laborer in the classified service in any manner or any means other than those prescribed in the Kansas civil service act and the rule adopted in accordance therewith.

(3) For positions involving unskilled, or semiskilled duties, the secretary of administration, as provided by law, shall establish rules and regulations concerning certification, appointments, layoffs and reemployment which may be different from the rules and regulations established concerning these processes for other positions in the classified service.

(4) Officers authorized by law to make appointments to positions in the unclassified service, and appointing officers of department or institutions whose employees are exempt from the provisions of the Kansas civil service act because of the constitutional status of such departments or institutions shall be permitted to make appointments from appropriate pools of eligibles maintained by the division of personnel services.

 

History: L. 1941, ch. 358, sec. 11; L. 1957, ch. 445, sec. 1; L. 1963, ch. 424, sec. 1; L. 1963, ch. 400, sec. 3; L. 1965, ch. 464, sec. 1; L. 1969, ch. 399, sec. 1; L.1971, ch. 272, sec. 1; L. 1972, ch. 318, sec. 1; L. 1974, ch. 383, sec. 1; L. 1976, ch. 377, sec. 1; L. 1976, ch. 378, sec. 1; L. 1978, ch. 332, sec. 7; L. 1982, ch. 22, sec. 5; L. 1985, ch. 256, sec. 15; L. 1987, ch. 347, sec. 1; L. 1989, ch. 266, sec. 2; L. 1989, ch. 233, sec. 2; L. 1990, ch. 305, sec. 1; L. 1992, ch. 293, sec. 1; L. 1994, ch. 293, sec. 28; L. 1995, ch. 236, sec. 15; L. ch. 255, sec. 12; L. 1997, ch. 156, sec. 88; L. 1998, ch. 182, sec. 20; May 21.

 

Revisor's note: Section was amended twice in the 1998 session, see also 75-2935.

75-3739 Competitive bids, exceptions; reports of purchases without bids, waivers of bid solicitation publication and delegations of purchasing authority; highway contracts exemption, state agency contracts exemption; prior approval of real property leases

75-3739. Competitive bids, exceptions; reports of purchases without bids, waivers of bid solicitation publication and delegations of purchasing authority; highway contracts exemption, state agency contracts exemption; prior approval of real property leases.

 

In the manner as provided in this act and rules and regulations established thereunder:

(a) All contracts for construction and repairs, and all purchases of and contracts for supplies, materials, equipment and contractual services to be acquired for state agencies shall be based on competitive bids, except that competitive bids need not be required in the following instances:

(1) For contractual services, supplies, materials, or equipment when in the judgment of the director of purchases, no competition exists;

(2) when, in the judgment of the director of purchases, chemicals and other material or equipment for use in laboratories or experimental studies by state agencies are best purchased without competition, or where rates are fixed by law or ordinance;

(3) when, in the judgment of the director of purchases, an agency emergency requires immediate delivery of supplies, materials, or equipment, or immediate performance of services;

(4) when any statute authorized another procedure or provides an exemption from the provisions of this section;

(5) when compatibility with existing contractual services, supplies, materials or equipment is the overriding consideration;

(6) when a used item becomes available and is subject to immediate sales; or

(7) when in the judgment of the director of purchases and the head of the acquiring state agency, not seeking competitive bids is in the best interest of the state. When the director of purchases approves a purchase of or contract for supplies, materials, equipment, or contractual services in any instance specified in this subsection, the director may delegate authority to make the purchase or enter the contract under conditions and procedures prescribed by the director. The director of purchases shall prepare a detailed report at least once in each calendar quarter of all contracts over $5,000 entered into without competitive bids under subsection (a)(1), (2), (3), (5), (6) or (7). The director shall submit the report to the legislative coordinating council, the chairperson of the committee on ways and means of the senate, the chairperson of the committee on appropriations of the house of representatives and the chairperson of the Kansas performance review board.

(b) (1) If the amount of the purchase is estimated to exceed $50,000, sealed bids shall be solicited by notice published once in the Kansas register not less than 10 days before the date state in the notice for the opening of the bids. The director of purchases may waive this publication of notice requirement when the director determines that a more timely procurement is in the best interest of the state. The director of purchases also may designate a trade journal for the publication. The director also shall solicit such bids by sending notices by mail to prospective bidders and by posting the notice on a public bulletin board for at least 10 business days before the date stated in the notice for the opening of the bids unless otherwise provided by law. All bids shall be sealed when received and shall be opened in public at the hour stated in the notice.

(2) The director of purchases shall prepare a detailed report at least once in each calendar quarter of all instances in which the director waived publication of the notice of bid solicitations in the Kansas register as provided in this subsection. The director shall submit the report to the legislative coordinating council, the chairperson of the committee on ways and means of the senate, the chairperson of the committee on appropriations of the house of representatives and the chairperson of the Kansas performance review board.

(c) All purchases estimated to exceed approximately $25,000 but not more than $50,000, shall be made after receipt of sealed bids following at least three days' notice posted on a public bulletin board.

(d) All purchases estimated to be more than $5,000 but less than $25,000, may be made after the receipt of three of more bid solicitation by telephone, telephone facsimile or sealed bid following at least three days' notice posted on a public bulletin board. Such bids shall be recorded as provided in subsection (e) of K.S.A. 75-3740 and amendments thereto. Any purchase that is estimated to be less $5,000 may be purchased under conditions and procedures prescribed by the director of purchases. Purchases made in compliance with such conditions and procedures shall be exempt from other provisions of this section.

(e) With the approval of the secretary of administration, the director of purchases may delegate authority to any state agency to make purchases of less than $25,000 under certain prescribed conditions and procedures. The director of purchases shall prepare a report at least once in each calendar quarter of all current and existing delegations of authority to state agencies as provided in this subsection. The director shall submit the report to the legislative coordinating council, the chairperson the committee on ways and means of the senate, the chairperson of the committee on appropriations of the house of representatives and the chairperson of the Kansas performance review board.

(f) Subject to the provisions of subsection (e), contracts and purchases shall be based on specifications approved by the director of purchases. When deemed applicable and feasible by the director of purchases, such specifications shall include either energy efficiency standard or appropriate life cycle cost formulas, or both, for all supplies, materials, equipment and contractual services to be purchased by the state. The director of purchases may reject a contract or purchase on the basis that a product is manufactured or assembled outside the United States. No such specifications shall be fixed in manner to effectively exclude any responsible bidder offering comparable supplies, materials, equipment or contractual services.

(g) Notwithstanding anything herein to the contrary, all contracts with independent construction concerns for the construction, improvement, reconstruction and maintenance of the state highway system and the acquisition of rights-of-way for state highway purposes shall be advertised and let as now or hereafter provided by law.

(h) The director of purchases may authorize state agencies to contract for services and materials with other state agencies, or with federal agencies, political subdivisions of Kansas, agencies of other states or subdivisions thereof, or private nonprofit educational institutions, without competitive bids.

(i) The director of purchases may participate in, sponsor, conduct, or administer a cooperative purchasing agreement or consortium for purchases of supplies, materials, equipment, and contractual services with federal agencies or agencies of other state or local units of government. Cooperative purchasing agreements entered into under this subsection shall not be subject to K.S.A. 75-3739 through 75-3740a, and amendments thereto.

(j) The director of purchases may delegate authority to any state agency to make purchases under certain prescribed conditions and procedures when the acquisition is funded, in whole or in part, from a grant. Purchases made in compliance with such conditions and procedures shall be exempt from other provisions of this section. As used in this subsection the term "grant" means a disbursement made from federal or private funds, or a combination of these sources to a state agency.

(k) The director of purchases shall prepare a detailed report at least once each calendar quarter of all contracts for services, supplies, materials or equipment entered into pursuant to subsection (h), (I), or (j) and submit it to the legislative coordinating council, the chairperson of the committee on ways and means of the senate, the chairperson of the committee on appropriations of the house of representatives and the chairperson of the Kansas performance review board.

(l) Except as otherwise specifically provided by law, no state agency shall enter into any lease of real property without the prior approval of the secretary of administration. A state agency shall submit to the secretary of administration such information relating to any proposed lease of real property as the secretary may require. The secretary of administration shall either approved, modify and approve or reject any such proposed lease.

(m) The director of purchases shall required all bidders on state contracts to disclose all substantial interests held by the bidder in the state.

 

History: L. 1953, ch. 375, sec. 39; L. 1968, ch. 311, sec. 2; L. 1975, ch. 450, sec. 1; L. 1978, ch. 357, sec. 1; L. 1979, ch. 289, sec. 5; L. 1980, ch. 279, sec.1; L. 1981, ch. 324, sec. 25; >l 1984, ch. 325, sec. 1; L. 1987, ch. 341, sec. 5; L. 1987, ch. 196, sec. 19; L. 1987, ch. 342, sec. 1; L. 1987, ch. 343, sec. 1; L. 1987, ch. 343, sec. 2; L. 1996, ch. 201, sec. 8; L. 1998, ch. 182, sec. 27: May 21. Source or Prior Law: K.S.A. 46-1604, 46-1701, 46-2101, 46-2101, 68-2003, 75-2935, 75-3739, 75-4703, 75-4706, 75-4707, 75-4709, 75-4740, 75-4741, 75-4742, 75-4743, 75-4744, 75-5147, 75-6301, and 76-3,1000 and K.S.A. 1997 Supp. 46-2201 and 65-34,154 are hereby repealed.

Uniform Electronic Transactions Act K.S.A. 16-1601 THROUGH 16-1620 K.S.A. 16-1601 Short Title K.S.A. 16-1602 Definitions

16-1601 Short Title

16-1601. Short title.

 

This act shall be known and may be cited as the uniform electronic transaction act.

 

History: L. 2000, ch. 120, sec. 1; July 1.

K.S.A. 16-1602 Definitions

16-1602. Definitions.

 

In this act:

(a) "Agreement" means the bargain of the parties in fact, as found in their language or inferred from other circumstances and from rules, regulations, and procedures given the effect of agreements under laws otherwise applicable to a particular transaction.

(b) "Automated transaction" means a transaction conducted or per- formed, in whole or in part, by electronic means or electronic records, in which the acts or records of one or both parties are not reviewed by an individual in the ordinary course in forming a contract, performing under an existing contract or fulfilling an obligation required by the transaction.

(c) "Computer program" means a set of statements or instructions to be used directly or indirectly in an information processing system in order to bring about a certain result.

(d) "Contract" means the total legal obligation resulting from the parties' agreement as affected by this act and other applicable law.

(e) "Digital signature" means a type of electronic signature consisting of a transformation of an electronic message using an asymmetric crypto system such that a person having the initial message and the signer's public key can accurately determine whether:

(1) The transformation was created using the private key that corresponds to the signer's public key; and

(2) the initial message has not been altered since the transformation was made.

(f) "Electronic" means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic or similar capabilities.

(g) "Electronic agent" means a computer program or an electronic or other automated means used independently to initiate an action or respond to electronic records or performances in whole or in part, without review or action by an individual.

(h) "Electronic record" means a record created, generated, sent, communicated, received or stored by electronic means.

(i) "Electronic signature" means an electronic sound, symbol or process attached to or logically associated with a record and executed or adopted by a person with the intent to sign the record.

(j) "Governmental agency" means an executive, legislative, or judicial agency, department, board, commission, authority, institution or instrumentality of the federal government or of a state or of a county, municipality or other political subdivision of a state.

(k) "Information" means data, text, images, sounds, codes, computer programs, software, databases or the like.

(l) "Information processing system" means an electronic system for creating, generating, sending, receiving, storing, displaying or processing information.

(m) "Message" means a digital representation of information.

(n) "Person" means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, governmental agency, public corporation or any other legal or commercial entity.

(o) "Record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.

(p) "Registered certification authority" means a person providing certification of a digital signature who is, or is certified by, a member of the group of certification authorities approved by and registered with the secretary.

(q) "Secretary" means the Kansas secretary of state.

(r) "Security procedure" means a procedure employed for the purpose of verifying that an electronic signature, record or performance is that of a specific person or for detecting changes or errors in the information in an electronic record. The term includes a procedure that re- quires the use of algorithms or other codes, identifying words or numbers, encryption, callback or other acknowledgment procedures.

(s) "State" means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands or any territory or insular possession subject to the jurisdiction of the United States.

(t) "Transaction" means an action or set of actions occurring between two or more persons relating to the conduct of business, insurance, commercial or governmental affairs.

 

History: L. 2000, ch. 120, sec.2; July 1.

16-1603 Scope

16-1603. Scope.

 

(a) Except as otherwise provided in subsection (b), this act applies to electronic records and electronic signatures relating to a trans- action.

(b) This act does not apply to a transaction to the extent it is governed by:

(1) A law governing the creation and execution of wills, codicils or testamentary trusts; and

(2) the uniform commercial code, other than K.S.A. 84-1-107 and 84- 1-206 and articles 2 and 2a of chapter 84 of the Kansas Statutes Annotated, and amendments thereto.

(c) This act applies to an electronic record or electronic signature otherwise excluded from the application of this act under subsection (b) to the extent it is governed by a law other than those specified in subsection (b).

(d) A transaction subject to this act is also subject to other applicable substantive law.

 

History: L. 2000, ch. 120, sec. 3; July 1.

16-1604 Prospective application

16-1604. Prospective application.

 

This act applies to any electronic record or electronic signature created, generated, sent, communicated, received or stored on or after the effective date of this act.

 

History: L. 2000, ch. 120, sec. 4; July 1.

16-1605 Use of electronic records and electronic signatures

16-1605. Use of electronic records and electronic signatures.

 

(a) This act does not require a record or signature to be created, generated, sent, communicated, received, stored or otherwise processed or used by electronic means or in electronic form.

(b) This act applies only to transactions between parties each of which has agreed to conduct transactions by electronic means. Whether the parties agree to conduct a transaction by electronic means is determined from the context and surrounding circumstances, including the parties' conduct.

(c) A party that agrees to conduct a transaction by electronic means may refuse to conduct other transactions by electronic means. The right granted by this subsection may not be waived by agreement.

(d) Except as otherwise provided in this act, the effect of any of its provisions may be varied by agreement. The presence in certain provisions of this act of the words "unless otherwise agreed", or words of similar import, does not imply that the effect of other provisions may not be varied by agreement.

(e) Whether an electronic record or electronic signature has legal consequences is determined by this act and other applicable law.

(f) This act does not require any person to use or permit the use of electronic or digital signatures.

(g) Any state agency may adopt rules and regulations governing the agency's use of digital signatures as long as the rules and regulations meet or exceed those adopted by the secretary.

 

History: L. 2000, ch. 120, sec. 5; July 1.

16-1606 Construction and application

16-1606. Construction and application.

 

This act must be construed and applied:

(a) To facilitate electronic transactions consistent with other appli- cable law;

(b) to be consistent with reasonable practices concerning electronic transactions and with the continued expansion of those practices; and

(c) to effectuate its general purpose to make uniform the law with respect to the subject of this act among states enacting it.

 

History: L. 2000, ch. 120, sec. 6; July 1.

16-1607 Legal recognition of electronic records; electronic signatures and electronic contracts

16-1607. Legal recognition of electronic records; electronic signatures and electronic contracts.

 

(a) A record or signature may not be denied legal effect or enforceability solely because it is in electronic form.

(b) A contract may not be denied legal effect or enforceability solely because an electronic record was used in its formation.

(c) If a law requires a record to be in writing, an electronic record satisfies the law.

(d) If a law requires a signature, an electronic signature satisfies the law.

 

History: L. 2000, ch. 120, sec. 7; July 1.

16-1608 Provision of information in writing; presentation of records

16-1608. Provision of information in writing; presentation of records.

 

(a) If parties have agreed to conduct a transaction by electronic means and a law requires a person to provide, send or deliver information in writing to another person, the requirements is satisfied if the information is provided, sent or delivered, as the case may be, in an electronic record capable of retention by the recipient at the time of receipt. An electronic record is not capable of retention by the recipient if the sender or its information processing system inhibits the ability of the recipient to print or store the electronic record.

(b) If a law other than this act requires a record

(1) to be posted or displayed in a certain manner,

(2) to be sent, communicated or transmitted by a specified method, or

(3) to contain information that is formatted in a certain manner, the following rules apply:

(A) The record must be posted or displayed in the manner specified in the other law.

(B) Except as otherwise provided in subsection (d)(2), the record must be sent, communicated or transmitted by the method specified in the other law.

(C) The record must contain the information formatted in the manner specified in the other law.

(c) If a sender inhibits the ability of a recipient to store or print an electronic record, the electronic record is not enforceable against the recipient.

(d) The requirements of this section may not be varied by agreement, but:

(1) To the extent a law other than this act requires information to be provided, sent or delivered in writing but permits that requirement to be varied by agreement, the requirement under subsection (a) that the in- formation be in the form of an electronic record capable of retention also may be varied by agreement; and (2) a requirement under a law other than this act to send, communicate or transmit a record by first-class mail, may be varied by agreement to the extent permitted by the other law.

 

History: L. 2000, ch. 120, sec. 8; July 1.

16-1609 Attribution and effect of electronic records and electronic signatures

16-1609. Attribution and effect of electronic records and electronic signatures.

 

(a) An electronic record or electronic signature is attributable to a person if it was the act of the person. The act of the person may be shown in any manner, including a showing of the efficacy of any security procedure applied to determine the person to which the electronic record or electronic signature was attributable.

(b) The effect of an electronic record or electronic signature attributed to a person under subsection (a) is determined from the context and surrounding circumstances at the time of its creation, execution or adoption, including the parties' agreement, if any, and otherwise as provided by law.

 

History: L. 2000, ch. 120, sec. 9; July 1.

16-1610 Effect of change or error

16-1610. Effect of change or error.

 

If a change or error in an electronic record occurs in a trans mission between parties to a transaction, the following rules apply:

(a) If the parties have agreed to use a security procedure to detect changes or errors and one party has conformed to the procedure, but the other party has not, and the nonconforming party would have detected the change or error had that party also conformed, the conforming party may avoid the effect of the changed or erroneous electronic record.

(b) In an automated transaction involving an individual, the individual may avoid the effect of an electronic record that resulted from an error made by the individual in dealing with the electronic agent of another person if the electronic agent did not provide an opportunity for the prevention or correction of the error and, at the time the individual learns of the error, the individual:

(1) Promptly notifies the other person of the error and that the individual did not intend to be bound by the electronic record received by the other person;

(2) takes reasonable steps, including steps that conform to the other person's reasonable instruction, to return to the other person or, if instructed by the other person, to destroy the consideration received, if any, as a result of the erroneous electronic record; and

(3) has not used or received any benefit or value from the consideration, if any, received from the other person.

(c) If neither paragraph (a) nor paragraph (b) applies, the change or error has the effect provided by other law, including the law of mistake, and the parties' contract, if any.

(d) Subsections (b) and (c) may not be varied by agreement.

 

History: L. 2000, ch. 120, sec. 10; July 1.

16-1611 Notarization and acknowledgment

16-1611. Notarization and acknowledgment.

 

If a law requires a signature or record to be notarized, acknowledged, verified or made under oath, the requirement is satisfied if the electronic signature of the person authorized to perform those acts, together with all other information required to be included by other applicable law, is attached to or logically associated with the signature or record.

 

History: L. 2000, ch. 120, sec. 11; July 1.

16-1612 Retention of electronic records; originals

16-1612. Retention of electronic records; originals.

 

(a) If a law requires that a record be retained, the requirement is satisfied by retaining an electronic record of the information in the record which:

(1) Accurately reflects the information set forth in the record after it was first generated in its final form as an electronic record or otherwise; and

(2) remains accessible for later reference.

(b) A requirement to retain a record in accordance with subsection (a) does not apply to any information the sole purpose of which is to enable the record to be sent, communicated or received.

(c) A person may satisfy subsection (a) by using the services of an- other person if the requirements of that subsection are satisfied.

(d) If a law requires a record to be presented or retained in its original form, or provides consequences if the record is not presented or retained in its original form, that law is satisfied by an electronic record retained in accordance with subsection (a).

(e) If a law requires retention of a check, that requirement is satisfied by retention of an electronic record of the information on the front and back of the check in accordance with subsection (a).

(f) A record retained as an electronic record in accordance with sub- section (a) satisfies a law requiring a person to retain a record for evidentiary, audit or like purposes, unless a law enacted after the effective date of this act specifically prohibits the use of an electronic record for the specified purpose.

(g) This section does not preclude a governmental agency of this state from specifying additional requirements for the retention of a record subject to the agency's jurisdiction.

 

History: L. 2000, ch. 120, sec. 12; July 1.

16-1613 Admissibility in evidence

16-1613. Admissibility in evidence.

 

In a proceeding, evidence of a record or signature may not be excluded solely because it is in electronic form.

 

History: L. 2000, ch. 120, sec. 13; July 1.

 

 

16-1614 Automated transactions

16-1614. Automated transactions.

 

In an automated transaction, the following rules apply:

(a) A contract may be formed by the interaction of electronic agents of the parties, even if no individual was aware of or reviewed the electronic agents' actions or the resulting terms and agreements.

(b) A contract may be formed by the interaction of an electronic agent and an individual, acting on the individual's own behalf or for another person, including by an interaction in which the individual performs actions that the individual is free to refuse to perform and which the individual knows or has reason to know will cause the electronic agent to complete the transaction or performance.

(c) The terms of the contract are determined by the substantive law applicable to it.

 

History: L. 2000, ch. 120, sec. 14; July 1.

16-1615 Time and place of sending and receipt

16-1615. Time and place of sending and receipt.

 

(a) Unless otherwise agreed between the sender and the recipient, an electronic record is sent when it:

(1) Is addressed properly or otherwise directed properly to an information processing system that the recipient has designated or uses for the purpose of receiving electronic records or information of the type sent and from which the recipient is able to retrieve the electronic record;

(2) is in a form capable of being processed by that system; and

(3) enters an information processing system outside the control of the sender or of a person that sent the electronic record on behalf of the sender or enters a region of the information processing system designated or used by the recipient which is under the control of the recipient.

(b) Unless otherwise agreed between a sender and the recipient, an electronic record is received when:

(1) It enters an information processing system that the recipient has designated or uses for the purpose of receiving electronic records or in- formation of the type sent and from which the recipient is able to retrieve the electronic record; and

(2) it is in a form capable of being processed by that system.

(c) Subsection (b) applies even if the place the information processing system is located is different from the place the electronic record is deemed to be received under subsection (d).

(d) Unless otherwise expressly provided in the electronic record or agreed between the sender and the recipient, an electronic record is deemed to be sent from the sender's place of business and to be received at the recipient's place of business. For purposes of this subsection, the following rules apply:

(1) If the sender or recipient has more than one place of business, the place of business of that person is the place having the closest relationship to the underlying transaction.

(2) If the sender or the recipient does not have a place of business, the place of business is the sender's or recipient's residence, as the case may be.

(e) An electronic record is received under subsection (b) even if no individual is aware of its receipt.

(f) Receipt of an electronic acknowledgment from an information processing system described in subsection (b) establishes that a record was received but, by itself, does not establish that the content sent cor- responds to the content received.

(g) If a person is aware that an electronic record purportedly sent under subsection (a), or purportedly received under subsection (b), was not actually sent or received, the legal effect of the sending or receipt is determined by other applicable law. Except to the extent permitted by the other law, the requirements of this subsection may not be varied by agreement.

 

History: L. 2000, ch. 120, sec. 15; July 1.

16-1616 Transferable records

16-1616. Transferable records.

 

(a) In this section, "transferable record" means an electronic record that:

(1) Would be a note under article 3 of chapter 84 of the Kansas Statutes Annotated, and amendments thereto or a document under article 7 of chapter 84 of the Kansas Statutes Annotated, and amendments thereto if the electronic record were in writing; and

(2) the issuer of the electronic record expressly has agreed is a transferable record.

(b) A person has control of a transferable record if a system employed for evidencing the transfer of interests in the transferable record reliably establishes that person as the person to which the transferable record was issued or transferred.

(c) A system satisfies subsection (b), and a person is deemed to have control of a transferable record, if the transferable record is created, stored and assigned in such a manner that:

(1) A single authoritative copy of the transferable record exists which is unique, identifiable, and, except as otherwise provided in paragraphs (4), (5) and (6), unalterable;

(2) the authoritative copy identifies the person asserting control as: (A) The person to which the transferable record was issued; or (B) if the authoritative copy indicates that the transferable record has been transferred, the person to which the transferable record was most recently transferred;

(3) the authoritative copy is communicated to and maintained by the person asserting control or its designated custodian;

(4) copies or revisions that add or change an identified assignee of the authoritative copy can be made only with the consent of the person asserting control;

(5) each copy of the authoritative copy and any copy of a copy is readily identifiable as a copy that is not the authoritative copy; and

(6) any revision of the authoritative copy is readily identifiable as authorized or unauthorized.

(d) Except as otherwise agreed, a person having control of a transferable record is the holder, as defined in K.S.A. 84-1-201(20), and amendments thereto, of the transferable record and has the same rights and defenses as a holder of an equivalent record or writing under the uniform commercial code, including, if the applicable statutory requirements under K.S.A. 84-3-302(a), 84-7-501, or 84-9-308, and amendments thereto are satisfied, the rights and defenses of a holder in due course, a holder to which a negotiable document of title has been duly negotiated, or a purchaser, respectively. Delivery, possession, and endorsement are not required to obtain or exercise any of the rights under this subsection.

(e) Except as otherwise agreed, an obligor under a transferable record has the same rights and defenses as an equivalent obligor under equivalent records or writings under the uniform commercial code.

(f) If requested by a person against which enforcement is sought, the person seeking to enforce the transferable record shall provide reasonable proof that the person is in control of the transferable record. Proof may include access to the authoritative copy of the transferable record and related business records sufficient to review the terms of the transferable record and to establish the identity of the person having control of the transferable record.

 

History: L. 2000, ch. 120, sec. 16; July 1.

16-1617 Registered certification authorities

16-1617. Registered certification authorities.

 

(a) Any person, before entering upon the duties of a registered certification authority, shall:

(1) Register with the secretary on forms approved and provided by the secretary;

(2) pay to the secretary an annual filing fee of $1,000;

(3) file with the secretary a good and sufficient surety bond, certificate of insurance or other evidence of financial security in the amount of $100,000; and

(4) be approved by the secretary as meeting the requirements of any rules and regulations adopted by the secretary, as the secretary deter- mines appropriate, to ensure the person's financial responsibility and condition, character, qualifications and fitness to be a registered certification authority.

(b) A registered certification authority shall create, maintain and pre- serve all records that are necessary to demonstrate compliance with rules and regulations adopted by the secretary.

(c) If any person who is approved and registered with the secretary as a registered certification authority fails to maintain any of the qualifications listed in subsection (a) and (b) or otherwise required by rules and regulations of the secretary, the person's registration shall be deemed lapsed.

(d) Any person who violates or fails to comply with this section and any provision related to registered certification authority and the rules and regulations of the secretary promulgated pursuant to section 18, and amendments thereto, upon notice and hearing, shall be subject to a civil penalty not to exceed $10,000 per failure or violation.

 

History: L. 2000, ch. 120, sec. 17; July 1.

16-1618 Rules and regulations

16-1618. Rules and regulations.

 

The secretary may adopt rules and regulations to implement the provisions of sections 17 and 19, and amendments thereto, and related provisions thereto.

 

History: L. 2000, ch. 120, sec. 18; July 1.

16-1619 Reciprocity with other jurisdictions

16-1619. Reciprocity with other jurisdictions.

 

The secretary shall have the authority to establish reciprocity with other states and nations for purposes of sections 17 and 18, and amendments thereto, and related provisions thereto.

 

History: L. 2000, ch. 120, sec. 19; July 1.

16-1620 Severability

16-1620. Severability.

 

If any provision of this act or its application to any person or circumstance is held invalid, the invalidity does not affect other pro- visions or applications of this act which can be given effect without the invalid provision or application, and to this end the provisions of this act are severable.

 

History: L. 2000, ch. 120, sec. 20; July 1.

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