IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 87,374
WICHITA EAGLE AND BEACON PUBLISHING
COMPANY, INC., and ROBERT SHORT,
Appellants/Cross-Appellees,
v.
CHARLES E. SIMMONS, in his capacity as
Secretary of Corrections for the State of Kansas,
Appellee/Cross-Appellant.
SYLLABUS BY THE COURT
1. Whether jurisdiction exists is a question of law over which an appellate court's scope of review is unlimited. Subject matter jurisdiction is the power of the court to hear and decide a particular type of action.
2. An appellate court has the duty to question jurisdiction on its own initiative. If the record shows a lack of jurisdiction for the appeal, the appeal must be dismissed. An objection based on lack of subject matter jurisdiction may be raised at any time, whether it be for the first time on appeal or even upon the appellate court's own motion.
3. The manner in which a particular exemption under the Kansas Open Records Act (KORA) is to be applied is a question of law over which an appellate court has unlimited review. The burden of proving the applicability of an exemption is on the public entity opposing disclosure.
4. Under KORA public record is any recorded information, regardless of form or characteristics, which is made, maintained, or kept by or is in the possession of any public agency. K.S.A. 45-217(f)(1). Thus, any nonexempt document, computer file, or tape recording in the possession of a public agency is subject to public disclosure under KORA.
5. Although an appellate court gives deference to the agency's interpretation of a statute, the final construction of a statute lies with the appellate court, and the agency's interpretation, while persuasive, is not binding on the court. Interpretation of a statute is a question of law over which an appellate court's review is unlimited.
6. Pursuant to KORA, the presentence report, the preparole report, the pre- postrelease supervision report and the supervision history, obtained in the discharge of official duty by any member or employee of the Kansas Parole Board or any employee of the Department of Corrections shall be privileged and shall not be disclosed directly or indirectly to anyone other than the parole board, the judge, the attorney general or others entitled to receive the information, except that the parole board, Secretary of Corrections or court may permit the inspection of the report or parts of it by the defendant, inmate, defendant's or inmate's attorney, or other person having a proper interest in it, whenever the best interest or welfare of a particular defendant or inmate makes the action desirable or helpful. K.S.A. 22-3711.
7. Although K.S.A. 22-4707 restricts the dissemination of criminal history record information and certain arrest records, a public agency may disclose court records, information concerning an arrest, or the status of a pending investigation.
8. Notwithstanding the provisions of K.S.A. 22-4707, a criminal justice agency may disclose the status of a pending investigation of a named person or the status of a pending proceeding in the criminal justice system, if the request for information is reasonably contemporaneous with the event to which the information relates and the disclosure is otherwise appropriate.
9. "Supervision history" in K.S.A. 22-3711 means the supervising parole officer's documentation of collected personal observations, sensitive personal information about the offender and third parties, contacts, conversations, observations, investigations, and interventions concerning a particular offender. Information concerning pending criminal charges filed against an individual not yet adjudicated is not included in the term supervision history.
10. It is a fundamental rule of statutory constructions, to which all other rules are subordinate, that the intent of the legislature governs if that intent can be ascertained. The legislature is presumed to have expressed its intent through the language of the statutory scheme it enacted. When a statute is plain and unambiguous, the court must give effect to the intention of the legislature as expressed, rather than determine what the law should or should not be. Stated another way, when a statute is plain and unambiguous, the appellate courts will not speculate as to the legislative intent behind it and will not read such a statute so as to add something not readily found in the statute.
11. The public policy stated in KORA is that all records are open for inspection by any person unless otherwise provided by this act. By statutory decree, the courts are to liberally construe and apply KORA to promote a policy of open inspection of public records.
12. While documents prepared specifically at the request or direction of legal counsel in anticipation of litigation need not be disclosed under the KORA exemption found in K.S.A. 45-221(a)(25), the subjective decision to mark records as prepared in anticipation of civil litigation should not by itself imbue the records with the protection of this privilege when, in reality, there is no likelihood that litigation will ensue.
13. The attorney work product doctrine does not offer a per se exemption for all records prepared by or for an attorney. The work product doctrine only applies to those documents and tangible things prepared in anticipation of litigation, and in order for the discovery limitation to apply, there must be a substantial probability that litigation will ensue. Certainly by implication the rule precludes any idea of extending the work product doctrine to reports or statements, even if written, obtained by the client or his investigators which are not prepared under the supervision of an attorney in preparation for trial.
14. Determining whether the district court correctly applied KORA is a question of law involving an interpretation of the statute; therefore, an appellate court's review of the district court's interpretation is plenary.
15. K.S.A. 45-218(e) provides that a records custodian may refuse to provide access to a public record, or to permit inspection, if a request places an unreasonable burden in producing public records or if the custodian has reason to believe that repeated requests are intended to disrupt other essential functions of the public agency. However, refusal under this subsection must be sustained by a preponderance of the evidence.
16. K.S.A. 2001 Supp. 60-226(b)(2)(A) does not codify a privilege; rather it allows a district court to limit the frequency and extent of discovery methods employed by parties to litigation. Therefore, because this provision is a limitation on civil discovery, not a privilege that may be invoked, it cannot be incorporated into the exemption for privileged records under K.S.A. 45-221(a)(2).
17. The language of the KORA provision K.S.A. 45-221(d) is clear and unequivocal. It mandates that a public agency shall separate or delete such material and make available to the requester that material in the public record which is subject to disclosure pursuant to KORA.
Appeal from Shawnee district court; ERIC S. ROSEN, judge. Opinion filed July 12, 2002. Reversed and remanded with directions.
William P. Tretbar, of Fleeson, Gooing, Coulson & Kitch, L.L.C., of Wichita, argued the cause, and Lyndon W. Vix, of the same firm, was with him on the briefs for appellants/cross-appellees.
Lisa A. Mendoza and Edward F. Britton, Jr., special assistant attorneys general, argued the cause and were on the brief for appellee/cross-appellant.
The opinion of the court was delivered by
ABBOTT, J.: Wichita Eagle and Beacon Publishing Company, Inc. (Wichita Eagle) and Robert Short, a reporter with Wichita Eagle, sought an order and judgment in mandamus to compel Charles Simmons, Secretary of Corrections for the State of Kansas, to provide them with access to and/or copies of correctional records, including documents which would identify releasees who were charged with murder or manslaughter from 1996 through 1999, under the Kansas Open Records Act (KORA), K.S.A. 45-215 et seq. The district court determined that supervision history records were privileged pursuant to K.S.A. 22-3711 and K.S.A. 45-221(a)(20) and that the work product doctrine would exempt documents and other tangible things prepared in anticipation of litigation from disclosure under KORA. In addition, the district court found that production of the records would be contrary to the public policy encouraging self-critical analysis and that redaction of the remaining information by the Secretary of Corrections would leave little to be disclosed. The district court stated that Wichita Eagle and Short could glean the remaining information from alternate and more appropriate sources.
Short wrote to Bill Miskell at the Kansas Department of Corrections on September 7, 1999, pursuant to KORA, and requested a list of the crimes reviewed by serious incident review boards during the previous 3 years. Short also requested the name of each inmate who committed a crime subject to review of serious incident review boards, and the date, location, and nature of the crime.
The Department of Corrections' internal documents define a "serious incident" as "[a]n event, situation, or occurrence which the Serious Incident Review Board Executive Committee considers will expose the Department to liability, or which in the judgment of the Secretary either has the potential to bring public criticism to the Department or constitutes possible grounds for disciplinary action . . . ."
Timothy Madden, Chief Legal Counsel for the Department of Corrections, sent a written denial of the request on September 10, 1999. Madden wrote:
"The requested correctional records are not records open to the public under K.S.A. 45-221(a)(29). While limited information pertaining to an identifiable inmate or releasee is to be provided from correctional records, your request does not identify either a specific inmate or specific released offender. Nor do you request information concerning specific inmates or released offenders. Rather, your request seeks confidential information concerning the Serious Incident Review Board and its working documents, materials and records.
"The Serious Incident Review Board is convened at the direction and under the supervision of the Chief Legal Counsel or his designee to review all serious incidents and prepare a report of findings for the Chief Legal Counsel. Any report to the Secretary of Corrections concerning the findings of the Board, or any recommendations to the Secretary, are intended to be strictly confidential [and] . . . are privileged under the rules of evidence and protected from disclosure under K.S.A. 45-221(a)(2), and as additionally provided by K.S.A. 60-426 (lawyer-client privilege), K.S.A. 60-451 (subsequent remedial measures), and K.S.A. 60-226(b)(1) (in anticipation of litigation)."
Madden also noted that K.S.A. 22-3711 expressly prohibited the release of certain confidential parole records, including parole supervision history, to anyone. He wrote that "[t]he Performance Audit Report contains information which, when combined with the information you have requested, will directly or indirectly enable anyone to easily discern the supervision history of identifiable offenders in violation of state law."
On September 13, 1999, Short sent another letter to Miskell requesting the names of persons charged with murder while under the supervision of the parole office of the Department of Corrections from May 1, 1996, to June 31, 1999.
Madden reaffirmed his denial of Short's first request for documents in a letter dated September 16, 1999, stating that the "Open Records Act simply does not allow disclosure of the information you seek in this request." Madden reiterated that the Department of Corrections was authorized to release the name, photograph, identifying information, disciplinary record, supervision violations, and location of parole office, etc., for specific individuals identified in connection with Short's second request.
The Secretary of Corrections furnished Short with copies of "a considerable volume of documents" containing information concerning parolees who were convicted of crimes committed from 1996 through 1999. The Secretary of Corrections also provided a copy of a policy and procedure document discussing serious incident review boards.
The Secretary of Corrections refused, however, to provide documents related to the efforts of individual serious incident review boards, or documents identifying or discussing incidents where parolees were charged with murder or manslaughter from 1996 through 1999 whose cases were not yet adjudicated. The Secretary of Corrections also refused to furnish redacted copies of records pursuant to K.S.A. 45-221(d).
On November 12, 1999, Wichita Eagle and Short filed a petition in the District Court of Shawnee County, Kansas, requesting that the court grant an order in mandamus compelling the Secretary of Corrections to grant access to or copies of all nonexempt public records identified in their prior requests. The petition contained paragraphs outlining the reasons why Wichita Eagle and Short sought the release of the requested documents:
"8. Parole officers employed by the DOC are responsible for the supervision of former inmates of correctional institutions who are released on parole, conditional release or postrelease supervision status. K.S.A.75-5214 and 75-5216.
"9. It is contemplated that former inmates will be assigned, at the time of their release, 'to the appropriate level of supervision,' pursuant to criteria for which defendant is responsible. K.S.A. 1998 Supp. 22-3717(k).
"10. Thereafter, parole officers are expected to:
. . . keep informed of the conduct and condition of a parolee or an inmate on postrelease supervision and use all suitable methods to aid, encourage and bring about improvement in the conduct and condition of such parolee or inmate or postrelease supervision.
(K.S.A. 75-5216).
. . . .
"12. A performance audit of the DOC's procedures in supervising parolees and individuals on postrelease supervision status was recently undertaken by Legislative Division of Post Audit, an arm of the Kansas Legislature.
"13. The audit report, released in August, 1999, cited a number of categories in which the DOC is doing its job well. The report also included several disturbing findings, including the following:
- half the parole officers and supervisors surveyed felt the 'grid' used by the DOC to guide parole officers in deciding what sanctions to impose for serious parole violations was not adequate to protect the public from harm;
- few parole officers are meeting all of the DOC's requirements for supervision parolees; and
- in a review of incidents involving 28 parolees who were charged with serious crimes while on parole during the past three years (22 murders, four rapes, kidnapping, arson and other offenses), the parole officers had failed to follow the sanctioning grid 42 percent of the time.
"14. With respect to the 28 parolees charged with serious crimes while on parole, the report further stated that:
Six of these parolees hadn't violated any of their parole conditions before committing new crimes. They'd either complied with all their parole requirements or were arrested and charged soon after being released . . .
For the remaining 22 parolees, we identified 43 incidents where they'd violated the conditions of their parole before committing the new crimes, and sanctions should have been imposed on them.
"15. The report identifies shortcomings in the performance of the parole officers involved in most of the 22 cases summarized above, including failures by the parole officers involved to carry out all of their supervisory responsibilities; failures to issue arrest warrants quickly when parolees failed to report or absconded, or could not be located; failures of timely communication between different offices and officers; failures involving parolees who 'fell through the cracks' because of confusion over who would supervise them; and, in some cases, failures to properly assess the parolee's 'risk level' or substance abuse history."
Following a brief period of discovery, both parties to the litigation filed motions for summary judgment. In its decision, the district court found the following facts to be uncontroverted:
"1. Defendant is the duly-appointed Secretary of Corrections for the State of Kansas and the chief executive officer of the Kansas Department of Corrections ("DOC").
"2. The DOC is a 'public agency' within the meaning of K.S.A. 45- 217(e)(1).
"3. On September 7 and 13, 1999 and on October 11, 1999, plaintiffs made written requests for access to certain records of the DOC.
"4. The records identified in Plaintiffs' request for access included the following:
documents which identify by name all inmates, parolees and/or others supervised by the DOC who have been charged with murder or manslaughter during 1996, 1997, 1998, and 1999;
documents containing details regarding the crimes of which these individuals have been accused;
minutes of the meetings of any serious incident review board in which the crimes or alleged crimes of these individuals are discussed;
notes, decisions, reports, and/or documents reflecting decisions or actions taken by any of the serious incident review boards which have considered the above-referenced crimes and parolees;
documents which identify the members of serious incident review boards during 1996, 1997, 1998, 1999; and
documents which discuss the purpose of the serious incident review boards, how its members are selected and compensated, etc.
"5. The DOC has disclosed to Plaintiffs a copy of the Kansas Department of Corrections Internal Management Policy and Procedure 12-118, Security and Control: Serious Incident Review Board Actions Pending and Subsequent to Incident Reviews, detailing the purpose of the serious incident review board, how often it meets, and how its members are selected.
"6. A 'serious incident' is an event, situation, or occurrence which, in the judgment of the DOC review committee, will expose the DOC to liability. It may also be an event, situation, or occurrence which in the judgment of the Secretary of Corrections either has the potential to bring public criticism to the DOC or constitutes possible grounds for disciplinary action based on personal conduct detrimental to state service which could cause undue disruption of work or endanger the safety of persons or property. The review committee is responsible for determining, on a case-by-case basis, whether review of a serious incident by the Serious Incident Review Board is appropriate. The review committee is comprised of the Secretary of Corrections, a Deputy Secretary of Corrections, the Chief Legal Counsel, or their designees.
"7. The DOC maintains a number of files, forms, records, and instruments relative to post-incarceration supervision of offenders in the custody of the Secretary of Corrections. One of these is the parole supervision file. The parole supervision file is comprised of the following documents and information concerning a specific offender: chronological entries; offender report forms; urinalyses test results and information; Permits to Leave State; Third Party Notification Forms; B/I Reports (reduced supervision phone-in reporting); AA/NA attendance slips; pay stubs; Risk and Needs Assessment and Reassessment Coding Forms; Movement and/or Master Records; other Offender Management Information System information; Good Time Award Records; Supervision Plan(s); Restitution Information; and Offender Financial Statement(s). It also contains Violation Report(s); Order(s) to Arrest and Detain; Parole Violation Warrant(s) and NCIC entries; Warrant Withdrawal Form(s); Statement of Charges; Notice of Preliminary Hearing; Summary of Preliminary Hearing; Notice of Revocation Hearing; Transportation Memo(s); Diversion Agreements; Case Reports/Discharge Recommendations, Informational Reports, etc.; Acknowledgment of Gun Law, Grievance Procedure, and Informant Policy; and Special Conditions. In addition, it contains Probation and Parole Rules; Interstate Compact Documents; Certificate of Release; Pre-Parole Report; Report of Parole Plan; Reception and Diagnostic Unit, Diagnostic Report and other case material; Certificate of Identification; Case Review; Investigation Requests and Replies; any correspondence concerning offender; law enforcement contact information; letters from citizens; mental health information; substance abuse reports; inquiries regarding child support; any prior parole material; Release of Information forms; and information concerning the offender's victims(s). It may also contain U.S. Department of Justice, Federal Bureau of Investigation, and Kansas Bureau of Investigation 'rap sheets.'
"8. The DOC has denied to grant Plaintiffs access to all the documents for which plaintiffs had made written request."
The Secretary of Corrections asserted that the district court did not have jurisdiction over the records because the requested records were not "public records" within the definition of KORA. In a memorandum decision and order dated February 7, 2001, the district court found it had jurisdiction in that the records sought by Wichita Eagle and Short were public records within the scope of KORA.
The district court wrote in its first memorandum decision and order that although the Secretary of Corrections had identified information that could be found in an offender's parole information file, "the Court is still unable to determine if all the information sought by Plaintiffs falls within an exemption to disclosure under KORA." Instead of ruling that the Secretary of Corrections had failed to meet its burden of proving that its documents qualified for an exemption to disclosure under KORA, however, the court decided to conduct an in-camera inspection of five sample records pursuant to K.S.A. 45-222(b).
After reviewing a sample of the requested records in camera, the district court released its findings of fact and conclusions of law in a second memorandum decision and order dated April 10, 2001. First, in regard to Wichita Eagle and Short's request for documents identifying members of the serious incident review boards from 1996-1999, the court found the members' names were not exempt from disclosure under KORA and removed the order for protective seal on the Secretary of Corrections' response to an interrogatory naming the individuals.
Next, the district court determined that "most of the requested records are 'supervision history.'" The Secretary of Corrections had asserted that it could not release the requested records under K.S.A. 22-3711. The district court found a "direct conflict" between K.S.A. 45-221(a)(29), the open records provision pertaining to correctional records, and K.S.A. 22-3711, a provision mandating that certain correctional records, including the supervision history of an inmate, shall not be disclosed. The court wrote:
"KORA was passed by the legislature 'to insure public confidence in government by increasing the access of the public to government and its decision-making processes. This increases the accountability of governmental bodies and deters official misconduct.' [Citation omitted.] However, here, the Court is presented with a separate statutory provision specifically disallowing 'supervision history' from being disclosed. Therefore, rather than release the information the legislature specifically enacted a provision to protect, the Court will find in favor of exempting records that constitute 'supervision history' from disclosure. Once the information has been released to the public it cannot be undone and the privilege will have been violated. Consequently, the Court finds this to be the most appropriate result under current Kansas law."
The district court also considered the Department of Corrections' claim that the serious incident review board's report to the Secretary of Corrections was prepared in anticipation of litigation and should be held strictly confidential "to encourage constructive self-criticism." The district court wrote:
"Despite the Court's inclination to liberally grant parties access to public records under KORA, the Court also recognizes that in this situation there is a strong public policy reason for denying disclosures of the requested records. The DOC conducts the serious incident review boards as a form of self-evaluation, facilitating ongoing self-analysis and improvement. Disclosure of the information recorded in these sessions would almost certainly discourage the DOC from conducting such self-evaluation, thus a direct benefit arises from denying access to [Wichita Eagle and Short]."
The district court also found that KORA provision K.S.A. 45-221(a)(20) specifically exempts "[n]otes, . . . recommendations or other records in which opinions are expressed or policies or actions are proposed." Therefore, the court found that "the notes and recommendations that were formulated by the serious incident review board are not discoverable under KORA."
Moreover, the district court determined that despite its determination that KORA did not require disclosure of the requested documents, at least one of the documents reviewed in camera supported the application of KORA's "work product" exemption, K.S.A. 45-221(a)(25).
Wichita Eagle and Short moved for an order to preserve the records inspected in camera and filed a motion to alter or amend judgment pursuant to K.S.A. 60-259(f). The motion raised three grounds for altering or amending the judgment. First, Wichita Eagle and Short asserted that the district court failed to apply the fundamental rule of statutory construction that a specific statute controls a more general statute when it determined that K.S.A. 22-3711 prevailed over KORA (K.S.A. 45-221(a)(29)[A]). Second, Wichita Eagle and Short argued that the district court failed to determine whether their record requests described any other public records of a character other than those submitted for in-camera review. Third, Wichita Eagle and Short argued that the district court should order the Secretary of Corrections to furnish them with redacted copies of the requested records pursuant to K.S.A. 45-221(d).
In its memorandum decision and order dated May 23, 2001, the district court addressed Wichita Eagle and Short's motion to alter or amend judgment. Observing that although it agreed K.S.A. 45-221(a)(29)(A) contained more detailed language than K.S.A. 22-3711, the district court found K.S.A. 22-3711 would have "little, if any, remaining effect" if it enforced the more specific KORA statute. The court adhered to its earlier determination and wrote:
"[Wichita and Eagle and Short] are not entitled to the disclosure of the names of inmates, parolees and/or others supervised by the DOC who have been charged with murder or manslaughter during the period from 1996-1999. The April 10, 2001 Memorandum Decision and Order stated that denial of access was based upon the 'supervision history' privilege of K.S.A. 22-3711. Upon reconsidering this issue, the Court finds that Defendant is still not required to disclose the names, for an alternative reason. As is stated in more detail below, the information is more appropriately available to [Wichita Eagle and Short] through other sources."
Second, the district court found that since it had required that the documents submitted for in-camera review "accurately represent all documents for which [Wichita Eagle and Short] are seeking disclosure," there was no need for it to determine whether other public records existed that would be responsive to the KORA request.
Finally, the district court found the majority of the information requested constituted "supervision history," and, of the information remaining, "there [were] alternative and more appropriate means by which [Wichita Eagle and Short] may obtain this information." The court hinted that arrest records from police and charging documents from district courts could be cross checked for names of individual parolees and that those names then could be used to obtain the requested information from the Department of Corrections.
The district court wrote that the memorandum and order "shall serve as the Order of the Court, no further journal entry being required."
On June 18, 2001, Wichita Eagle and Short timely appeals all adverse judgments, orders, and decrees of the district court, framing three legal challenges. The Secretary of Corrections raises two issues on cross-appeal. The matter is before this court pursuant to a K.S.A. 20-3018(c) transfer.
I. SUBJECT MATTER JURISDICTION
On cross-appeal, the Secretary of Corrections raises the issue of whether the district court erred in failing to dismiss the mandamus petition for lack of subject matter jurisdiction.
Whether jurisdiction exists is a question of law over which this court's scope of review is unlimited. Cypress Media, Inc. v. City of Overland Park, 268 Kan. 407, 414, 997 P.2d 681 (2000).
"The legislature has provided that each county shall have a district court of record which shall have general original jurisdiction of all matters both civil and criminal, unless otherwise provided by law. K.S.A. 20-301.
". . . Subject matter jurisdiction is the power of the court to hear and decide a particular type of action. [Citation omitted.]" State v. Hall, 246 Kan. 728, 757, 793 P.2d 737 (1990).
KORA confers jurisdiction on the district court of any county where public records are situated. "The district court of any county in which public records are located shall have jurisdiction to enforce the purposes of this act with respect to such records, by injunction, mandamus or other appropriate order . . . ." K.S.A. 45-222(a).
The Secretary of Corrections maintains that he consistently denied the district court had jurisdiction because the Department of Corrections does not maintain in its possession a centralized file or record containing a list of identifiable offenders who have been charged with manslaughter.
Wichita Eagle and Short contend that while the Secretary of Corrections now challenges the subject matter jurisdiction based on the alleged location of the public records, this was not argued before the district court below. In addition, they assert there is nothing in KORA requiring a requesting party to prove each document requested from a public agency is located in a particular county. Wichita Eagle and Short