Leek v. Peterson

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NOT DESIGNATED FOR PUBLICATION

No. 113,345

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

KENNETH D. LEEK,
Appellant,

v.

BRETT PETERSON, et al.,
Appellees.


MEMORANDUM OPINION

Appeal from Leavenworth District Court; GUNNAR A. SUNDBY, judge. Opinion filed November
20, 2015. Affirmed.

Kenneth D. Leek, pro se appellant.

Sherri Price, special assistant attorney general, for appellees.

Before STANDRIDGE, P.J., BUSER and SCHROEDER, JJ.

Per Curiam: Kenneth D. Leek appeals the dismissal of his petition for a writ of
mandamus seeking disclosure of a certain Kansas Department of Corrections (KDOC)
handbook from Lansing Correctional Facility (Lansing) under the Kansas Open Records
Act (KORA). Leek's mandamus petition is an improper use of the procedure. Mandamus
is a proceeding asking the court to order a government officer to do his or her official
duty when the duty is clearly defined by law. We find Lansing had no "'clearly defined
duty, one imposed by law and not involving the exercise of discretion,'" Taylor v.
Kobach, 300 Kan. 731, 734, 334 P.3d 306 (2014), to disclose the handbook at issue. The
district court correctly dismissed the mandamus action, and we affirm.
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FACTS

While incarcerated at Lansing, Leek requested disclosure of the Kansas
Department of Corrections Internal Management Policy and Procedure 12-105 (the
Handbook), relating to "Security Threat Groups Identification and Management." Brett
Peterson, the Freedom of Information Officer, denied Leek's request for access to the
Handbook on the basis that it was "Staff Read Only." In response to Peterson's decision,
Leek filed a formal grievance. The Unit Team Manager for Lansing responded that the
Handbook was a "Security Related IMPP" and designated "Staff Read Only," thus, access
was strictly prohibited. Dissatisfied with the response, Leek forwarded his grievance to
the Warden's office, who responded that the Unit Team Manager's response was
appropriate. Leek appealed this decision to the Secretary of Corrections, who also
deemed Lansing's response to be appropriate.

Having exhausted his administrative remedies, Leek filed a petition for mandamus
with the district court requesting access to the Handbook under K.S.A. 75-5256(b).
Lansing responded by filing a motion to dismiss arguing, in part, that the Handbook was
exempt from disclosure under K.S.A. 2014 Supp. 45-221(a)(12) because it concerned
security information or procedures used by the KDOC. Leek responded that the
Handbook was a rule or record as defined by K.S.A. 2014 Supp. 77-415 and thus
disclosable under K.S.A. 75-5256(b). Leek also requested that the district court conduct
an in-camera review of the Handbook.

The district court summarily denied Leek's petition. The district court found Leek
failed to demonstrate Lansing had a duty to disclose the Handbook. Specifically, the
district court found mandamus relief was not available because the Handbook did not
appear to meet the definition of a rule or regulation and that any uncertainty as to the
Handbook's classification eliminated the possibility Lansing was duty bound to disclose
it.
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Leek timely appealed.

ANALYSIS

Leek presents two interrelated arguments on appeal as to why the district court
erred in denying his petition. First, Leek contends that the Handbook is a rule or
regulation with the force and effect of law and that, as such, Lansing had a clearly
defined duty to disclose it. Second, Leek argues the district court failed to conduct an in-
camera inspection of the Handbook before ruling whether it was exempt from disclosure.
On appeal, both parties agree the district court never performed an in-camera inspection
of the Handbook.

An action in mandamus requires this court to interpret the applicable statutes and
regulations, matters over which we have unlimited review. See Jeanes v. Bank of
America, 296 Kan. 870, 873, 295 P.3d 1045 (2013). A mandamus action is controlled by
K.S.A. 60-801 which provides: "Mandamus is a proceeding to compel some inferior
court, tribunal, board, or some corporation or person to perform a specified duty, which
duty results from the office, trust, or official station of the party to whom the order is
directed, or from operation of law." The remedy of mandamus is available only to compel
the performance of a clearly defined duty. It is not available to enforce a right over which
there is substantial dispute or to mandate an act involving the exercise of discretion of the
public official. It is only available when the petitioner is clearly entitled to the order the
petition seeks. See Arney v. Director, Kansas State Penitentiary, 234 Kan. 257, Syl. ¶¶ 1,
2, 3, 671 P.2d 559 (1983). The burden of showing a right to mandamus relief sought is on
the petitioner. Kansas Medical Mut. Ins. Co. v. Svaty, 291 Kan. 597, 620, 244 P.3d 642
(2010).

We first turn to Leek's contention K.S.A. 75-5256(b) required disclosure of the
Handbook because it met the definition of the term "rule and regulation" as defined in
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K.S.A. 2014 Supp. 77-415. Under the Rules and Regulations Filing Act, K.S.A. 77-415 et
seq., the terms "rule" and "regulation" are defined as "a standard, requirement or other
policy of general application that has the force and effect of law, including amendments
or revocations thereof, issued or adopted by a state agency to implement or interpret
legislation." K.S.A. 2014 Supp. 77-415(c)(4). Furthermore, K.S.A. 75-5256(b) provides,
in relevant part:

"All rules and regulations or orders for the government of a correctional
institution and the enforcement of discipline therein adopted or issued by the secretary of
corrections and all orders issued by the warden of the correctional institution shall be
published and made available to all inmates, other than rules and regulations and orders
relating to emergency or security procedures."

In its motion to dismiss, Lansing described the Handbook as containing "security
information and procedures used by Department of Corrections" to aid in the
"identification and management of security threat groups (more commonly referred to as
gangs)." Leek agrees with the district court's finding the Handbook is an internal
management tool of the KDOC but argues it is a policy of general application. Leek
maintains the KDOC adopted the Handbook to interpret or enforce K.A.R. 44-12-325(c),
the administrative regulation concerning security threat groups.

Here, the record indicates the Handbook is for security information and procedures
involving security threats from groups or gangs. This description indicates the Handbook
is not one of general application but rather one that applies only to certain inmates in the
custody of the KDOC. See Gilmore v. McKune, 23 Kan. App. 2d 1029, 1035, 940 P.2d
78 (1997) (finding that an internal policy at Lansing did not meet the "general
application" requirement under K.S.A. 77-415[4] because "it does not apply to all
inmates in the custody of the DOC").

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Because Leek relied on K.S.A. 75-5256(b) to establish Lansing's duty to disclose
the Handbook, and the Handbook is not for general application, Lansing was exempt
from the requirements of K.S.A. 75-5256(b) and had no legally defined duty to disclose
the Handbook. Additionally, we note K.S.A. 75-5256(b) specifically exempts from
disclosing "rules and regulations and orders relating to emergency or security
procedures." Without such a clearly defined duty, one imposed by law, mandamus relief
was not appropriate. See Arney, 234 Kan. 257, Syl. ¶ 2. Therefore, the district court did
not err in denying Leek's petition on that basis. Accordingly, Leek failed to demonstrate
the availability of mandamus relief. See Svaty, 291 Kan. at 620.

We also find Leek's second claim the district court erred in not performing an in-
camera inspection of the Handbook to be without merit. The record reflects the content of
the Handbook was not in dispute and the decision not to perform an in-camera inspection
was not arbitrary, fanciful, or unreasonable. See Northern Natural Gas Co. v. ONEOK
Field Services Co., 296 Kan. 906, 935, 296 P.3d 1106 (defining abuse of discretion), cert.
denied 134 S. Ct. 162 (2013). We affirm the district court's decision to dismiss Leek's
mandamus petition.

Affirmed.