Are Kansas's assigned-risk auto insurance plans subject to open records and open meetings laws?

Plain-English summary

Kansas's Insurance Commissioner asked whether two industry-run insurance mechanisms she oversees, the Kansas Automobile Insurance Plan (KAIP), which serves as the state's residual market for drivers who can't get coverage through ordinary channels, and the Kansas Automobile Assigned Claims Plan (KAACP), which assigns personal injury claims from uninsured or unidentified motorists to insurers, are subject to Kansas's open records and open meetings laws even though they're technically made up of private insurance companies rather than government employees.

The Attorney General concluded both are covered by both sunshine laws. On open records, the opinion applied the Kansas Supreme Court's "instrumentality" test from a 2018 case involving a nonprofit hospital operator, asking whether an entity serves as the means through which a governmental body accomplishes its function. KAIP and KAACP fit that description closely: the Insurance Commissioner appoints every member of each plan's governing board or committee, must approve or can reject and replace the plans these bodies formulate, and actively monitors and enforces compliance, making both plans arms of the Commissioner's office rather than independent private organizations. On open meetings, the opinion found both plans qualify as "subordinate groups" of the Insurance Department, and under existing Kansas Supreme Court precedent, once a parent state agency meets the public-funding test (which the Insurance Department clearly does), every subordinate group automatically falls under the Open Meetings Act too, regardless of whether that specific subordinate group receives any direct public funding of its own.

What this means for you

Insurance Department officials and KAIP/KAACP board or committee members: the opinion confirms your records must be made available for public inspection under KORA and your governing meetings must generally be open to the public under KOMA, just as they would be for any other state agency subordinate body.

Insurers and rating organizations participating in these plans: the opinion signals that governance decisions, plan filings, and administrative actions by KAIP and KAACP are subject to the same public transparency requirements as other state-supervised entities, since the Commissioner's direct control over both plans makes them instrumentalities of her office.

Open government and transparency advocates: the opinion is a useful example of how Kansas's "instrumentality" and "subordinate group" doctrines extend sunshine-law coverage to nominally private or industry-run bodies that are, in substance, extensions of a state agency's regulatory function.

Common questions

Do KAIP and KAACP need to receive direct public funding to be subject to the Open Meetings Act?
No, according to the opinion; Kansas Supreme Court precedent holds that once the parent agency (here, the Insurance Department) meets the public-funding test, all of its subordinate groups are automatically covered by KOMA regardless of their own funding source.

What made the Attorney General treat KAIP and KAACP as "instrumentalities" of the Commissioner rather than independent private organizations?
The opinion pointed to the Commissioner's appointment of every board or committee member, her authority to approve, reject, or substitute the plans these bodies create, and her ongoing enforcement power over both plans as the key facts showing they function as extensions of her office.

Does this mean every industry group that works with a state agency is subject to KORA and KOMA?
Not automatically; the opinion's analysis turns on the degree of governmental appointment and control, following case law distinguishing merely regulated private entities from those that function as an actual arm of government, so the outcome depends on how much direct control the state agency exercises.

Background and statutory framework

KAIP, created under K.S.A. 40-2102, is Kansas's residual insurance market for drivers unable to obtain coverage through ordinary voluntary insurance markets, governed by a nine-member board appointed entirely by the Insurance Commissioner, who reviews and can approve, reject, or independently draft the plan the board proposes, and who monitors compliance and can hold hearings over prohibited activity. KAACP, created under K.S.A. 40-3116 and K.A.R. 40-3-35, assigns personal injury protection claims involving uninsured or unidentified motorists to insurers, similarly governed by a Commissioner-appointed committee subject to the Commissioner's approval and enforcement authority.

The Kansas Open Records Act, K.S.A. 45-217 through 45-218, applies to any "public agency," defined broadly to include any "instrumentality" of the state, a term the Kansas Supreme Court in State v. Great Plains of Kiowa County, Inc. read using its ordinary meaning: a means or agency through which a governmental function is accomplished. The Kansas Open Meetings Act, K.S.A. 75-4317 through 75-4318, applies to legislative and administrative bodies of the state and their "subordinate groups," and Kansas Supreme Court precedent in State ex rel. Murray v. Palmgren holds that once a parent state or local body meets KOMA's public-funding threshold, every subordinate group is automatically covered regardless of that specific subgroup's own funding. The opinion applied both doctrines to conclude KAIP and KAACP, as Commissioner-appointed and Commissioner-controlled bodies operating under the Insurance Department's umbrella, are covered by both statutes.

Citations and references

Statutes and regulations:
- K.S.A. 40-2102 (incl. (e)); 40-3116 (incl. (e))
- K.S.A. 45-217(k)(1); 45-218(a)
- K.S.A. 75-4317(a); 75-4318(a)
- K.A.R. 40-3-35 (incl. (a))

Cases:
- State v. Great Plains of Kiowa County, Inc., 308 Kan. 950 (2018)
- State ex rel. Murray v. Palmgren, 231 Kan. 524 (1982)
- R.P. v. First Student Inc., 62 Kan. App. 2d 371 (2022)

Source

• Landing page: https://www.ag.ks.gov/reports-resources/ag-opinions
• Original PDF: https://www.ag.ks.gov/home/showpublisheddocument/10492/638460984360170000

Original opinion text

June 27, 2023

ATTORNEY GENERAL OPINION NO. 2023- 3

The Honorable Vicki Schmidt, Commissioner of Insurance
Kansas Insurance Department
1300 SW Arrowhead Road
Topeka, KS 66604

Re: Insurance—Miscellaneous Provisions—Apportionment or Assignment
of Risk of Certain Motor Vehicle Bodily Injury and Property Damage
Liability Insurance; Filing of Plan; Requirements; Governing Board of
Plan; Membership; Review of Plan; Approval; Disapproval; Procedure;
Preparation of Plan by Commissioner; Unreasonable or Unfair
Activities by Insurer or Rating Organization

        Insurance—Kansas Automobile Injury Reparations Act—Assigned
        Claims Plan; Availability of Personal Injury Protection Benefits Under
        Plan; Powers of Commissioner; Participation by Insurers and Self-
        Insurers Required

        Public Records, Documents and Information—Records Open to
        Public—Definitions—Inspection of Records

        State Departments; Public Officers and Employees—Public Officers
        and Employees—Open Public Meetings—Open Meetings Declared
        Policy of State—Meetings of State and Subdivisions Open to Public

Synopsis: The Kansas Automobile Insurance Plan and Kansas Automobile
Assigned Claims Plan are subject to the Kansas Open Records Act and
the Kansas Open Meetings Act. Cited herein: K.S.A. 40-2102;
40-3116; 45-217; 45-218; 75-4317; 75-4318; K.A.R. 40-3-35.

                               *          *      *

Dear Commissioner Schmidt:

As the Commissioner of Insurance, you ask whether the Kansas Automobile
Insurance Plan (KAIP) and the Kansas Automobile Assigned Claims Plan (KAACP)
are subject to the Kansas Open Records Act (KORA), K.S.A. 45-215 et seq., and the
Kansas Open Meetings Act (KOMA), K.S.A. 75-4317 et seq. Since they act as arms
of the Commissioner under the Commissioner's supervision, they are subject to
KORA. Likewise, because they are subordinate to the Commissioner, they are also
subject to KOMA.

To answer your questions, we must construe various statutes. The interpretation of
statutory provisions begins with the statutory text, giving words their ordinary,
everyday meanings. Only when the language is ambiguous is it appropriate to use
tools of statutory interpretation or consider legislative history.1

The KAIP is a statutorily created entity made up of various insurers and rating
organizations that conduct business in Kansas.2 It is charged with formulating a
plan "for the equitable apportionment among insurers of applicants for insurance
who are in good faith, entitled to but who are unable to procure through ordinary
methods, such insurance."3 In plainer terms, the KAIP is "the state's residual
market for individuals or businesses who are unable to obtain coverage through the
regular voluntary insurance markets."4

The KAIP is administered by a "governing board."5 All nine members of the board
are appointed by the Commissioner.6 The board must adopt a plan and submit it to
the Commissioner for her review pursuant to certain statutory criteria.7 The
Commissioner can either approve or disapprove the plan, and if the board does not
submit a satisfactory plan, the Commissioner must prepare one that meets the
requisite statutory standards.8 Once a plan is approved, the Commissioner monitors
the plan to ensure no insurer or rating organization engages in any prohibited

1 Bruce v. Kelly, 316 Kan. 218, 224 (2022).
2 K.S.A. 40-2102.
3 Id.
4 https://www.kaipins.org/.
5 K.S.A. 40-2102(e).
6 Id.
7 K.S.A. 40-2102(a)-(d).
8 K.S.A. 40-2102.

activity.9 Costs to operate the plan are assessed to members based on the number of
policies written in Kansas.10

The KAACP is a plan that, in essence, assigns to insurers personal injury claims of
people injured by uninsured or unidentified motorists under certain conditions.11
The KAACP is made up of various Kansas insurers and managed by a "governing
committee."12 Like the KAIP's governing board, the entire committee is appointed
by the Commissioner, and the committee must formulate a plan in accordance with
law, otherwise the Commissioner may reject it or create her own plan.13 The plan
assesses fees to its members, which must be approved by the Commissioner.14

KORA

With this background in mind, we turn to the question of whether the KAIP and
KAACP are subject to KORA,15 which generally requires a "public agency" to make
public records open for inspection.16 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.17

In State v. Great Plains of Kiowa County, Inc.,18 the Kansas Supreme Court used
the ordinary, everyday definition of "instrumentality" ("a thing used to achieve an
end or purpose, or a means or agency through which a function of another entity is
accomplished") to hold that a not-for-profit corporation operating a county hospital
was an instrumentality of the county government.19 There was "no question," the

9 Id. If the Commissioner suspects that such an activity is taking place, she may conduct a hearing in

accordance with the Kansas Administrative Procedure Act, K.S.A 77-501, et seq., and enter a written
order "requiring discontinuance of such activity or practice." Id.
10 https://kaipins.org/PlanManagerApplicants.asp.
11 http://www.kaacp.org/KAACPHistory.asp.
12 K.S.A. 40-3116(e); K.A.R. 40-3-35(a).
13 K.A.R. 40-3-35.
14 K.S.A. 40-3116. According to its Articles of Agreement, the KAACP assesses each insurer an

annual fee, and all costs are shared by the members on a pro rata basis. http://www.kaacp.org/pdf/
KAACPArticlesOfAgreement.pdf. Any insurer or self-insurer who refuses to participate in the plan
"shall be assessed a civil penalty of not more than $5,000 for each" violation. K.S.A. 40-3116.
15 Since the provisions detailing the duties of KAIP and KAACP are largely parallel, we assess the

applicability of KORA and KOMA equally for the purpose of answering your questions.
16 K.S.A. 45-218(a).
17 K.S.A. 45-217(k)(1) (emphasis added).
18 308 Kan. 950 (2018).
19 Id. at 954 (citing Purvis v. Williams, 276 Kan. 182 (2003) (citing Black's Law Dictionary 802 (7th

ed. 1999))).

Court concluded, that it was an arm of the county government given the county's
statutory grant of authority to operate a public hospital, the terms of the lease
agreement explaining the hospital was meant to operate for the benefit of the
community, and the public funds the hospital received from a tax levy.20

Just as a not-for-profit corporation operating a county hospital is an
instrumentality of the county, KAIP and KAACP are instrumentalities of the
Commissioner. The statutory language chosen by the Legislature shows it intended
KAIP to serve as the institution through which the Commissioner ensures members
of the public may obtain certain insurance coverage if they cannot otherwise do so
through traditional voluntary markets.21 Similarly, the Legislature intended
KAACP to serve as the body through which the Commissioner ensures those who
have been injured by uninsured or unidentified motorists may receive personal
injury protection benefits.22 The Commissioner's direct and extensive control over
the KAIP and KAACP underscores the Legislature's intent to render them arms of
the Commissioner.23 And this office has found similar organizations are subject to
KORA.24 We thus conclude that KAIP and KAACP meet the definition of "public
agency" and are subject to KORA.

KOMA

Next, you ask whether the same entities are subject to KOMA, which generally
requires meetings of governmental bodies to be open to the public.25 KOMA applies
to the following entities: "all legislative and administrative bodies and agencies of
the state and political and taxing subdivisions thereof, including boards,
commissions, authorities, councils, committees, subcommittees and other
subordinate groups thereof, receiving or expending and supported in whole or in
part by public funds."26

20 Id. at 954-56.
21 See K.S.A. 40-2102.
22 K.S.A. 40-3116.
23 Cf. R.P. v. First Student Inc., 62 Kan. App. 2d 371, Syl. ¶ 3 (2022), rev. denied (Oct. 28, 2022) ("To

qualify as an instrumentality under the Kansas Tort Claims Act, a private entity that contracts with
a governmental entity must either be an integral part of or controlled by a governmental entity.").
24 See Attorney General Opinion 2001-13 (Finney County Economic Development Corporation);

Attorney General Opinion 1999-64 (Prairie Village Development Corporation); Attorney General
Opinion 1988-61 (city hospital); Attorney General Opinion 1986-48 (Jobs Development Council
created by local chamber of commerce, city, and county).
25 This statutory scheme was enacted for the public benefit, so courts construe it broadly to fulfill this

purpose. State ex rel. Stephan v. Seward County Board of Commissioners, 254 Kan. 446, 448, 866
P.2d 1024 (1994); see K.S.A. 75-4317(a) ("In recognition of the fact that a representative government
is dependent upon an informed electorate, it is declared to be the policy of this state that meetings
for the conduct of governmental affairs and the transaction of governmental business be open to the
public.").
26 K.S.A. 75-4318(a).

Relevant here, KAIP and KAACP are subject to KOMA if they are subordinate
groups of the Insurance Department, which spends, receives, or is supported by
public funds.27 We have no hesitation concluding that they are subordinate groups
where KAIP is governed by a "board" and KAACP is governed by a "committee",
both of which are appointed entirely by the Commissioner and are under the
Commissioner's supervision.28

Whether KAIP and KAACP spend, receive, or are supported by public funds is
immaterial. The Kansas Supreme Court has held that "[s]o long as the parent state
or local body meets the public funding test, all subordinate groups are automatically
covered by the Kansas Open Meetings Act regardless of the degree or existence of
public funding."29 Here, the "parent agency" is the Insurance Department, which
receives, expends, and relies on public funds. Serving as subordinate groups, the
KAIP's and KAACP's meetings are thus subject to KOMA.30

                                            Sincerely,

                                            /s/ Kris W. Kobach

                                            Kris W. Kobach
                                            Kansas Attorney General


                                            /s/ Kurtis K. Wiard

                                            Kurtis K. Wiard
                                            Assistant Solicitor General

27 See Memorial Hospital Association, Inc. v. Knutson, 239 Kan. 663, 669 (1986) (citing State ex rel.

Murray v. Palmgren, 231 Kan. 524, 535 (1982)). Prior Attorney General Opinions have identified
factors for identifying what constitutes an "agency." E.g. Attorney General Opinion 1994-99.
However, the "agency" at issue in this scenario is the Insurance Department.
28 See, e.g., Attorney General Opinion 2001-13 (Finney County Economic Development Corporation

had sufficiently "strong[] ties to governmental entities" that appointed a majority of its directors).
29 Palmgren, 231 Kan. 524, ¶ 9.
30 See Attorney General Opinion 1993-73 (parental board is subordinate group of recreation

commission); Attorney General Opinion 1984-81 (school advisory board is subordinate group of
school district board).