Wichita Eagle & Beacon Publishing Co. v. Simmons, 87,374.

• Decision Date: 12 July 2002
• Docket Number: No. 87,374.,87,374.
• Parties: 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.
• Court: Kansas Supreme Court

274 Kan. 194

50 P.3d 66

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.

No. 87,374.

Supreme Court of Kansas.

Opinion filed July 12, 2002.

William P. Tretbar, of Fleeson, Cooing, 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

...