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The Salina Journal v. Brownback

Court of Appeals of Kansas

April 7, 2017

The Salina Journal and The Associated Press, Appellees,
v.
The Honorable Sam Brownback, Governor of Kansas; Eileen Hawley, Communications Director/Press Secretary, Office of Governor Brownback; and Kim Borchers, Director of Appointments for Governor Brownback, Appellants.

         SYLLABUS BY THE COURT

         1. When no material facts are in dispute, appellate courts will review a summary judgment order de novo.

         2. Interpretation of a statute is a question of law over which appellate courts have unlimited review.

         3. The most fundamental rule of statutory interpretation is that the intent of the legislature governs if that intent can be ascertained.

         4. In determining the intent of the legislature, appellate courts must first look to the plain language of the statute in question. During the examination of the plain language of the statute, appellate courts must give common words their ordinary meanings. If the legislature's intent is clear under the plain language of the statute, then no further analysis should occur.

         5. When a statute is plain and unambiguous, appellate courts should not speculate about the legislative intent behind that clear language, and they should refrain from reading something into the statute that is not readily found in its words.

         6. Appellate courts should only use the canons of statutory construction if the intent of the legislature is not clear under the plain language of the statute.

         7. The function of liberal construction is called into use where there is ambiguity in the language of the statute, or, in other words, where there are one or more interpretations which may fairly be made. It is also well established that the doctrine of liberal construction does not allow an appellate court to delete vital provisions or supply vital omissions in a statute. No matter what the legislature may have really intended to do, if it did not in fact do it, under any reasonable interpretation of the language used, the defect is one which the legislature alone can correct.

         8. K.S.A. 2014 Supp. 45-221(a)(4), the personnel records exception, states: Except to the extent disclosure is otherwise required by law, a public agency shall not be required to disclose personnel records, performance ratings, or individually identifiable records pertaining to employees or applicants for employment, except that this exemption shall not apply to the names, positions, salaries or actual compensation, employment contracts, or employment-related contracts or agreements and lengths of service of officers and employees of public agencies once they are employed as such.

         9. The last antecedent doctrine says relative or modifying phrases are to be applied to the words immediately preceding them and are not to be construed as extending to remote phrases.

         10. It is a well-known principle that courts should presume that the legislature does not intend to enact useless or meaningless legislation. Thus, courts should avoid an interpretation that would render any part of the legislation useless or meaningless.

         Appeal from Shawnee District Court; Rebecca W. Crotty, judge. Opinion filed April 7, 2017. Reversed and remanded with directions.

          Brant M. Laue, chief counsel, Office of the Governor, for appellants.

          Nathanael Berg and Russel B. Prophet, of Hampton & Royce, L.C., of Salina, for appellees.

          Before Hill, P.J., Green, J., and Burgess, S.J.

          Green, J.

         The Salina Journal and The Associated Press (collectively referred to as "plaintiffs") submitted separate Kansas Open Records Act (KORA) requests with the Office of the Governor. Plaintiffs requested records pertaining to all applicants seeking appointment to two newly created Saline County commissioner positions. Their request was denied. As a result, plaintiffs jointly filed a petition to enforce their request against Governor Sam Brownback, Eileen Hawley, and Kim Borchers (collectively referred to as "defendants"). Defendants argued that the records plaintiffs requested were exempt from disclosure under K.S.A. 2014 Supp. 45-221(a)(4), (20), and (30)-the personnel records exception, the preliminary working papers exception, and the privacy exception, respectively. Eventually, both parties moved for summary judgment. The trial court granted plaintiffs' motion for summary judgment because it found that none of the exceptions defendants cited were applicable.

         On appeal, the defendants maintain that the records requested by plaintiffs for release were exempt from disclosure under the personnel records exception. Thus, the question before us is whether the records requested by plaintiffs from the Office of the Governor pertaining to applicants seeking appointment to the two newly created Saline County commissioner positions come within the expressly authorized exemption from disclosure under K.S.A. 2014 Supp. 45-221(a)(4), (20), or (30). We determine that the records requested by plaintiffs come within the expressly authorized exemption of K.S.A. 2014 Supp. 45-221(a)(4). Therefore, the trial court was without authority to order the release of this information to plaintiffs. Accordingly, we reverse and remand to the trial court with directions to enter summary judgment in favor of the defendants.

         On November 4, 2014, the people of Saline County voted to expand the Saline County Commission from three to five districts. This resulted in commissioner vacancies in the two newly formed districts. Under K.S.A. 2014 Supp. 19-203(c), when a county votes to expand the number of districts within its county commission, the Governor must fill the commissioner vacancies by appointment "within 30 days of the date of the adoption of the resolution dividing the county into commissioner districts."

         On December 9, 2014, The Salina Journal faxed a letter to Borchers, the Director of Appointments for Governor Brownback, requesting "the applications, and any and all applications that may be submitted" for the two new commissioner positions. The Salina Journal asserted that it was entitled to review the applications under KORA. On December 12, 2014, Hawley, the Communications Director and Press Secretary for Governor Brownback, responded that the applications were "not subject to the [KORA]" under K.S.A. 2014 Supp. 45-221(a)(4). K.S.A. 2014 Supp. 45-221(a)(4), commonly referred to as the personnel records exception, states:

"[A] public agency shall not be required to disclose:
"(4) Personnel records, performance ratings or individually identifiable records pertaining to employees or applicants for employment, except that this exemption shall not apply to the names, positions, salaries or actual compensation employment contracts or employment-related contracts or agreements and lengths of service of officers and employees of public agencies once they are employed as such."

         On December 18, 2014, The Associated Press emailed Hawley, requesting "a list of the candidates for each of the two newly created seats on the Board of County Commissioners for Saline County, along with their hometowns" under KORA. Hawley responded that The Associated Press was not entitled to the information requested, again citing the personnel records exception.

         On January 15, 2015, plaintiffs jointly filed a petition against Governor Brownback with the Shawnee County District Court, requesting "injunctive and other appropriate relief in seeking the disclosure and release of the agency records improperly withheld from [them]" under KORA. Plaintiffs asserted that the personnel records exception was inapplicable because the Saline County commissioner applicants were not applicants for employment as stated under K.S.A. 2014 Supp. 45-221(a)(4). On May 1, 2015, plaintiffs filed an amended petition in which they named Governor Brownback as well as Hawley and Borchers as defendants. Aside from naming Hawley and Borchers as defendants, The Salina Journal and The Associated Press' amended petition was identical to their original petition.

         Defendants answered plaintiffs by denying that the personnel records exception was inapplicable.

         On June 1, 2015, defendants moved for summary judgment against plaintiffs. In their motion for summary judgment, defendants argued that summary judgment was appropriate because the information that plaintiffs requested was exempt from disclosure under the personnel records exception. Defendants emphasized that the personnel records exception states that disclosure of information under KORA is not required as to "[p]ersonnel records, performance ratings or individually identifiable records pertaining to employees or applicants for employment." (Emphasis added.) K.S.A. 2014 Supp. 45-221(a)(4). Defendants argued that the persons applying for the commissioner positions were applicants for employment; therefore, the exception applied.

         Last, defendants briefly argued that two other KORA exceptions applied. Specifically, defendants argued that the records plaintiffs requested were exempt from disclosure under the preliminary working papers exception and the privacy exception. K.S.A. 2014 Supp. 45-221(a)(20)-the preliminary working papers exception-states that the following information is exempt from disclosure under KORA:

"Notes, preliminary drafts, research data in the process of analysis, unfunded grant proposals, memoranda, recommendations or other records in which opinions are expressed or policies or actions are proposed, except that this exemption shall not apply when such records are publicly cited or identified in an open meeting or in an agenda of an open meeting."

         Moreover, K.S.A. 2014 Supp. 45-221(a)(30)-the privacy exception-states that the following information is exempt from disclosure under KORA: "Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy."

         Plaintiffs responded that the trial court should deny defendants' summary judgment motion. Plaintiffs did not controvert any of the defendants' material statements of fact. Nevertheless, plaintiffs contended that the personnel records exception was inapplicable because there was a difference between applicants for employment, which were clearly covered under the personnel records exception, and applicants for appointment, which they asserted were not covered under the personnel records exception. Plaintiffs also cited Southwest Anesthesia Serv., P.A. v. Southwest Med. Ctr., 23 Kan.App.2d 950, 937 P.2d 1257 (1997), for the proposition that the personnel records exception applies only when a party requests information about the employer's employees. Plaintiffs emphasized that in Southwest Anesthesia Service, this court held that the personnel records exception did not exempt from disclosure the hospital's records pertaining to physicians who had privileges to provide care at the hospital but were not employed by the hospital. 23 Kan.App.2d at 953. In the context of this case, plaintiffs argued that the Southwest Anesthesia Service precedent meant that the personnel records exception did not apply to the applicants for the commissioner positions because Governor Brownback would not employ the successful applicants.

         As to the preliminary working papers exception, plaintiffs argued that this exception would apply only if Governor Brownback's viewpoints were included on the applications, in which case defendants could redact that information. As to the privacy exception, plaintiffs argued that information like the applicants' social security numbers and driver's license numbers would have to be redacted from their applications. Yet, plaintiffs argued that this exception did not allow defendants to exempt from disclosure the remaining information requested.

         On September 18, 2015, the Shawnee County District Court denied defendants' motion for summary judgment. First, the trial court held that Southwest Anesthesia Service stood for the proposition that "only employees of the agency from which records are requested qualify for the exemption under K.S.A. 45-221(a)(4)." In other words, the trial court held that Southwest Anesthesia Service held that all requests for records pertaining to "nonemployees" were not exempt from disclosure under the personnel records exception. Accordingly, because the applicants for the commissioner positions were nonemployees, the trial court found that the personnel records exception was inapplicable. Then, the trial court further found that Southwest Anesthesia Service supported that the information that plaintiffs requested was not exempt from disclosure under the personnel records exception because "while the applications for appointment may be essentially equivalent to applications for employment, the applicants are not seeking the employment with the agency from which the records were requested-or, indeed, from any other state agency under the auspices of the executive branch of Kansas government."

         In regards to defendants' assertion that the preliminary working papers exception applied, the trial court found it did not apply because The Salina Journal had requested the applications and The Associated Press had merely requested the names and hometowns of applicants; this meant that the records plaintiffs requested would not have contained Governor Brownback's viewpoints. In regards to defendants' assertion that the privacy exception applied, the trial court found that to the extent that the application information requested contained "personal information, such as social security numbers and driver's license ...


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