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April 13, 1990.

ROBERT VINSON EYE; MARY M. STEPHENS, a/k/a "Stevi" Stephens; ALLIANCE FOR LIVABLE ELECTRIC RATES, an unincorporated association, d/b/a ALERT; and NUCLEAR AWARENESS NETWORK, INC., a Corporation, d/b/a NAN, Appellants.

The opinion of the court was delivered by:

This is a civil action. Robert Eye, Mary Stephens, a/k/a "Stevi" Stephens, Alliance for Livable Electric Rates (ALERT), and Nuclear Awareness Network (NAN) appeal from the district court's judgment granting Kansas Gas & Electric's (KG&E) prayer for replevin and a permanent injunction, the denial of appellants' counterclaims, and the district court's denial of a motion to permit supplemental pleadings.

This controversy developed from the following scenario, much of which is familiar to us from a previous case. Kansas Gas & Electric Co. v. Kansas Corporation Comm'n, 239 Kan. 483, 720 P.2d 1063 (1986). KG&E constructed and operated the Wolf Creek Generating Station (Wolf Creek), a nuclear power plant located in Coffey County. KG&E and its co-owners, Kansas City Power & Light Company (KCPL) and Kansas Electric Power Cooperatives, Inc. (KEPCO), established the Wolf Creek Nuclear Operating Corporation (WCNOC) as a wholly owned subsidiary and the acting operating agent of Wolf Creek. WCNOC succeeded KG&E as the operator of Wolf Creek on January 1, 1987.

  Previously, in March of 1984, while KG&E was the plant operator it established a "whistle-blower" program. This program was initiated to improve the start up, operation, maintenance, testing, and decommissioning, as well as some design and construction matters, of the Wolf Creek nuclear facility. To attain

[246 Kan. 421]

      the desired improvement, KG&E established a mechanism for employees of the plant to voluntarily and confidentially report to an independent organization any suggestions or concerns they might have with regard to safety or efficiency of the construction or operation of Wolf Creek. Quality First is that independent organization. Under the Quality First Program, all employee concerns are to be resolved in a timely and cost-efficient manner. All Wolf Creek employees are encouraged to make their concerns known to Quality First.

  Because confidentiality was considered a critical element of the Quality First Program, KG&E adopted a confidentiality agreement for the use and protection of all the Wolf Creek workers who provided information under the program. Each worker was also required to execute a nondisclosure agreement. In a further effort to protect the confidentiality of Quality First documents and records, the Quality First files were kept in a central location separate and apart from other KG&E records. These files were locked in cabinets under the sole control of Quality First personnel. The making of copies of any part of the files was prohibited. Information in the files was made available to persons outside the program only upon a "need to know" basis to be determined by the Quality First manager.

  A Quality First file contains various accumulated documents including, but not limited to: a concern disclosure statement; a confidentiality agreement; investigative work plans; notes; work papers; safety evaluation reports; and the notes of personal impressions, reflections, and opinions of Quality First personnel.

  KG&E has authorized disclosure of the Quality First files on several occasions. The files were made available to the Nuclear Regulatory Commission (NRC) during safety inspections on a confidential basis which prohibited copying or removal from the Quality First area. The files were also made available to the Kansas Corporation Commission (KCC) for review as a part of the Wolf Creek rate case hearings. Preliminary to the KCC hearings, Commissioner Keith Henley reviewed the files in total to determine if they had any rate-making significance. Copying was prohibited. Subsequent to Henley's review, approximately twenty files were transported to Topeka for review by the full Commission. Two files and a portion of a third were provided to parties in the rate

[246 Kan. 422]

      case for review and use in cross-examination of witnesses. Again, copying was prohibited and all the files were returned to KG&E.

  Several unauthorized disclosures of Quality First files have taken place. During the Wolf Creek rate case, copies of portions of two files were produced by Robert Eye, appellant and attorney for ALERT, an intervenor in the rate case. Neither Eye nor ALERT were authorized to have copies of such files. Eye received his copies of the files from Mary Stephens. She received her copies of the files as director of NAN. Stephens and NAN are unauthorized possessors of copies of the Quality First files. Eye, ALERT, Stephens, and NAN retain possession of portions of copies of approximately sixty-eight Quality First files.

  On June 10, 1985, KG&E filed a petition seeking to recover all original or copies of files in the possession of appellants and to temporarily and permanently enjoin appellants from disclosing, reproducing, and disseminating the subject information. On the same day, the district court granted an ex parte temporary restraining order and notice of hearing for a temporary injunction. After a full trial, the district court granted KG&E an order of replevin for any copies of Quality First files within appellants' possession and a permanent injunction as sought. The district court denied appellants' counterclaims of a constitutional right to disseminate information pertaining to the efficiency and safety of the nuclear power plant. The court also denied appellants' claim that KG&E violated the federal and state constitutions in the manner it obtained the temporary restraining order. The district court also denied appellants' post-trial motion to supplement the record and file a supplemental pleading. This appeal followed.

  The first issue on appeal is whether the district court erred in holding the Quality First files are protected by the copyright laws.

  The district court determined the question of whether KG&E was the owner of the copies of the files turned upon an analysis of copyright law. The court then ruled that the Quality First information falls within the purview of the Copyright Act of 1976, 17 U.S.C. § 101 et seq., or alternatively, that the information qualifies for common-law copyright protection. We disagree.

  Let us examine the copyright laws.

  17 U.S.C. § 102 (1988) of the Copyright Act provides:

[246 Kan. ...

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