STAUFFER COMMUNICATIONS, INC.,      )
                                    )
            Plaintiff,              )
v.                                  )  Case No.  00-C-561
                                    )
THE BOARD OF COUNTY COMMISSIONERS,  )
                                    )
            Defendant.              )
____________________________________)

Now on this 12th day of January, 2001 comes regularly on for decision the above entitled cause. The Plaintiff appears by Michael W. Merriam, it's attorney. The Defendant appears by Richard V. Eckert and Lisa R. Jones, it's attorneys.

The Plaintiff and Defendant in their respective briefs have set forth facts from which the court has selected and adopted, as set forth herein, for purposes of this opinion, to wit:

1. Commissioner Mike Meier received surveillance videotapes from an employee at the Shawnee County Department of Corrections (DOC) sometimes prior to November 9, 1999, which purportedly showed inappropriate behavior by DOC personnel. (Meier Depo., p. 8.)

2. Commissioner Meier did not share the videotape at first, but the tape was eventually turned over to Shawnee County Counselor, Richard V. Eckert. (Meier Depo, pp. 10, 19.)

3. Commissioner Meier never viewed the tape. (Meier Depo, p. 16.)

4. Shortly after Commissioner Meier received the tape, a complaint was filed with the Equal Employment Opportunity Commission against the Shawnee County Corrections Department on November 9, 1999, and two additional complaints followed on November 10, 1999, by former female employees alleging sexual harassment and discrimination. There is no evidence the complaints were directly related to the videotape received by Commissioner Meier. (Motion to Dismiss, Ex. 1)

5. Defendant County approved the hiring of outside counsel, on November 10, 1999, to investigate into the Shawnee County Corrections Department's administration, policies, procedures and issues of sexual harassment in order to obtain legal advice on the impending administrative adjudication and litigation and begin preparation of defense of the anticipated lawsuits. This investigation resulted in a report prepared and authorized by Mark Bennett, Jr., an attorney, which shall be referred to as the "Bennett Report." (Motion to Dismiss, Exhibits 2, 6.)

6. Plaintiff published a newspaper article November 11, 1999, titled "County Orders Jail Inquiry - Comes in wake of jail surveillance tapes secretly delivered to Commissioner Meier." The article erroneously suggested that the decision to hire outside counsel, was made in response to the videotape received by Commissioner Meier. (Meier Depo., pp. 16-19.) Meier further testified that the November 11, 1999, article did not fulfill the total response of what the Commissioners were doing in the November 10, 1999, Executive Session which resulted in the motion to hire outside legal counsel. (Meier Depo., p. 20.)

7. Commissioner Meier testified when asked whether the November 11, 1999, article accurately described what he was saying and doing at that time, that he didn't know if his concern over possible litigation was in the article or not, but that that was part of his concern at the time. (Meier Depo., p. 15.)

8. Commissioner Meier testified that he felt "there was a tremendous potential liability from the rumors [he] was hearing." (Meier Depo., p. 17.)

9. Commissioner Meier testified that he knew a lawsuit or "something" was going to be filed against the County when he received the videotapes. (Meier Depo., p. 19.)

10. Commissioner Meier testified he was not accurately quoted in the November 11, 1999, newspaper article in connection with the statement that he doesn't "take intimidation very well." He testified he was not talking about the filing of the police report, but instead in regard to a phone call he received from Earl Hindman which he took as personally threatening. (Meier Depo., p. 27.)

11. Commissioner Meier testified that in the November 11, 1999, article which quoted him as saying that "[t]he issue isn't as much a sexual misconduct issue as a management issue" meant that he had already had a management issue with Earl Hindman with or without the tapes. He further testified that he meant he had a "management issue for [his] own personal outlook maybe," but that the "rumor mill" had it that litigation was impending and since he had problems with that particular manager, he was worried about the state of potential litigation. (Meier Depo., p. 30.)

12. Commissioners met with Mark Bennett in Executive Session, and discussed litigation. (Meier Depo., p. 36.)

13. Commissioner Meier testified he wanted to hire Mark Bennett "to find the truth," and that he was concerned about future claims, but could not recall if pending claims had yet been filed, but that the main focus of the report was the pending litigation or anticipated future litigation. (Meier Depo., pp. 37, 42, 45.)

14. Commissioner Meier testified he would have made the management changes that were made without having the Bennett Report done. (Meier Depo., p. 47.)

15. As to whether it was his idea to hire outside legal counsel, Commissioner Meier testified that "[i]t may not have been any of the Commissioners' ideas...[t]hat is what we have our Department Heads to give us advice for." (Meier Depo., p. 47.)

16. Commissioner Meier testified he depended on the County Counselor to determine who should be hired as legal counsel to investigate into the matter at issue. (Meier Depo., p. 48.)

17. Commissioner Meier testified the hiring of Bennett was directly tied to concern over litigation, stating ". . .I indicated that the person who handed me the tapes did file one of those EEOC complaints. I already knew liability was coming. What do you do? If you do nothing you are, in my opinion, more liable than ever." (Meier Depo., p. 52.)

18. Commissioner Meier testified that although he made positive statements to the media about professionals at the DOC, they were never published, and further testified he presumed it is the editor who decides what is published, who in this case is employed by the Plaintiff. (Meier Depo., p.59.)

19. Commissioner Ensley testified that although he did not recall the matters discussed at the November 10, 1999, meeting, the purpose was to discuss personnel issues, and that afterward he made a motion to authorize the County Counselor to hire outside counsel. (Ensley Depo., p. 7.)

20. Commissioner Ensley testified he had heard there was a possibility of litigation dealing with personnel issues at the DOC prior to November 10, 1999. (Ensley Depo., pp. 8, 9.)

21. Commissioner Ensley testified he wanted an attorney hired to investigate because of the potential litigation, so that the attorney/client privilege could be maintained, and further testified the attorney/client privilege had never been waived. (Ensley Depo. p. 18.)

22. Commissioner Kane testified that as a result of the November 10, 1999, meeting the Board decided to "hire legal counsel, Mr. Bennett." (Kane Depo., p. 6.)

23. The purpose in hiring Mark Bennett that may not be completely reflected by the minutes of the November 10, 1999, meeting is that the Board "needed to know legally what was out there. We needed counsel to look into the situation." Commissioner Kane further testified that "[a]s commissioners, we have that fine line of being responsible for everything that happens and we needed to know legally where we were." (Kane Depo., pp. 6-7.) Commissioner Kane in her deposition stated "The jail was made aware of some real deficiencies in employee moral and we addressed other legal issues that were brought to us that the Bennett Report stated . . ." (Kane Depo. p.3.) The commissioner didn't respond solely to morale issues as a result of the report but legal action, was also taken. Commissioner Kane believed the information in the report dealt not just with low moral but would also open the door to the county being sued. (See Kane Depo. pp. 15-16.) Commissioner Kane was aware she was receiving legal advice from Mr. Bennett. (Kane Depo. p.18.)

24. Commissioner Kane testified that as a result of the Bennett Report, action was taken on the advice of counsel, Mark Bennett. (Kane Depo., p.12.)

25. Commissioner Kane testified changes were made at the jail as a result of the legal advice in the Bennett Report in order to avoid liability. (Kane Depo., p. 14.)

26. Commissioner Kane testified, "[a]nything Mr. Bennett told us was a privileged communication, but then if we took that tool that Mr. Bennett had just given to us verbally and as legal counsel and we would share that with [jail management] . . . I don't know that it would have been privileged, but I don't think it should be made public." (Kane Depo., p. 16.)

27. Commissioner Kane testified that the Board was trying to avoid a liability situation by hiring Mark Bennett as legal counsel immediately upon notice that there may have been a problem at the jail, and further testified that the Bennett Report could create more future claims if it were disclosed because Mark Bennett's "investigation would give them a blueprint that would given them the structure to sue us, even though we were acting as quickly as we possibly could from knowledge." (Kane Depo., p. 16-17.)

28. Mark Bennett testified that he understood he was hired by the Commissioners to "conduct an investigation of allegations made by three employees" of the DOC and then to "advise the Board as to the legal ramifications of the facts," and to provide opinions as to their exposure. (Bennett Depo., p. 8, 10.)

29. Mark Bennett testified that the first time he spoke with the County Counselor about representing the County with regards to the jail issues, there was mention that EEOC Complaints had been filed, and that he received those complaints withing a day or two of the discussion. (Bennett Depo., p. 9.)

30. The attorney for the three women who had filed EEOC Complaints was present during the interviews conducted by Mark Bennett. (Bennett Depo., p. 14.)

31. Mark Bennett testified that he understood the report would not be public and conveyed that understanding, to the people he interviewed, stating "that the County Commission had indicated to me that it would be private." He further testified that had he been told it would be open to the public, he would not have written the same words as it could be damaging in some respects. (Bennett Depo., p. 15.)

32. Mark Bennett testified that all those interviewed were promised confidentiality, and that he told a number of then that he was representing the County and the attorney/client privilege would apply. (Bennett Depo., p. 16.)

33. Mark Bennett testified he set out recommendations based on his understanding of the law and of the facts as he discovered. (Bennett Depo., p. 18.)

34. An EEOC Complaint begins the process of an adjudication, and is a precursor to the filing of a federal lawsuit. (Bennett Depo., p. 19.)

35. Mark Bennett testified that disclosure of the Bennett Report would interfere with the defense of the pending adjudication (Bennett Depo., p. 19.) and hurt the defense because the Plaintiff's could use the information to improve their present position. (Bennett Depo. p. 29.)

36. Mark Bennett had meeting with his client, the Board, and discussed what his legal opinions were in relation to what he had discovered and what the Board could do to lessen its legal exposure. (Bennett Depo., p. 20.)

37. Mark Bennett has no experience in jail management, but nearly 40 years experience in litigation. (Bennett Depo., pp. 4-6.)

38. Because liability was the principal concern in hiring outside counsel, Mark Bennett was chosen for his experience and expertise as an attorney in the areas of civil and criminal litigation, specifically "the interrogative skills, the techniques that [Bennett] garnered over 40 years in [the] field." Bennett further testified someone from another profession such as human resources would not have had the "legal background to have gone after the facts that would have legal significance to the defense of this case." (Bennett Depo., p. 31, Richard V. Eckert Affidavit)

39. The investigation conducted involved "management issues" as they related to the legal complaints made regarding sexual harassment. (Bennett Depo., p. 28.)

40. Mark Bennett testified that it is likely that there is information in the Report that would not be discoverable in litigation. (Bennett Depo., p. 29-30.)

41. Mark Bennett testified that he believes the legal counsel that has now been hired to defend the pending litigation could have done the investigation and applied the law to the facts as he did, and in response to the question posed of whether he thought the report was privileged by the attorney/client privilege in its entirety, he responded:

Based on what I understood that I was being requested to do, yes, I think that it was. Everything that I did was at the request of the Board of County Commissioners and was really the basis for the Recommendations and advice that I gave them with regards to potential liability.

(Bennett Depo., p. 33.)

42. Mark Bennett testified as to the contents of the report as follows:

The report contains a summary of what each interviewee told me, . . . then I summarize in three or four pages, in most instances, what the witness in a two or three hour interview, four hour interview told me. And give an analysis of that testimony and my opinion as to whether or not it's corroborated or disputed by somebody else's testimony. And then my analysis of what problems or legally inappropriate activities are going on or occurred, and my recommendations as to what should or should not be done with regards to various aspects that had been complained about by these ladies.

(Bennett Depo., p. 36.)

43. When questioned as to whether the Board hired Bennett to obtain the benefit of the attorney/client privilege, Bennett testified:

I never had that impression. My impression was they thought they had a potential problem. They knew they had a problem because these complaints had been filed and they wanted to find out if there was any basis for the complaints and start trying to figure out how to defend against them.

(Bennett Depo., p. 37.)

44. Mark Bennett testified that although he did not know the particulars of how or when the County knew the complaints were going to be filed, however, he was provided a copy shortly after he was retained. (Bennett Depo., p. 38.)

45. When asked whether Commissioner Meier expressed the opinion, as he was quoted in the newspaper as saying, that the issue wasn't as much a sexual misconduct issue as a management issue, Mark Bennett testified that Commissioner Meier did not express that same opinion to him, but that "[t]he concern was, is there a basis for these complaints? And what do we do to defend against this and to prevent if from happening in the future." (Bennett Depo., pp. 38-39.)

46. When asked whether the report was done in anticipation of litigation, Mark Bennett testified.

. . .as I understood the Board of County Commissioners, they had concerns about the --- I don't think any litigation had been filed, but these complaints had been filed. And they wanted to try and develop the facts for the purpose of defending against a potential lawsuit. But at the same time . . .they made it clear to me that they wanted me to get all the facts. That if there were facts that where [sic] damaging to them, they wanted to know them, what they were so they could either defend against them or make a judgment on how to dispose of any potential lawsuit.

(Bennett Depo., p. 40.)

47. With regard to the question posed of whether the court could order disclosure and still protect against disclosure of Mr. Bennett's mental impressions, conclusions and theories, Mark Bennett testified:

I don't think so. I think the way the Report is written it's --- in every instance where I summarize these interviews, I think my mental impressions, theories, thought processes, are all there. I mean I tell them, I think, in those instances, "this is bad, this is going to hurt." Or it's either implied or in many instances directly set out, "that this is damaging to your position."

(Bennett Depo., p. 42.)

48. Mark Bennett testified as to how his mental impressions and though processes were interwoven in the factual summaries, stating:

I think the Summaries are written in a way that my mental impressions of that witness, the credibility of that witness, the truthfulness of that witness, are all set out in the Summary. Because when I say a summary, I didn't just say he said this, and this, and this, and this, and this, and this, and this. But the Summaries are written in such a way "He said this. But interviewee C and D said this. So there is a question as to the reliability of what he's saying."

(Bennett Depo., p. 42.)

49. When asked again if Mark Bennett though anything in the Report was not privileged, Mark Bennett testified:

. . .my intention, was to give the Board my impressions, based on my experience and my understanding of the law, as to whether or not these witnesses were - the nature and extent of their credibility or lack thereof and where the shortcomings in the testimony were or the strengths of the testimony. But in my opinion, that's work product and that's mental impressions.

(Bennett Depo., p. 46.)

50. Counsel for the women who brought the complaints, Marty Meyers, testified that he asked Mark Bennett in a letter dated December 10, 1999, whether he would be interviewing witnesses in connection with an investigation as to the validity of his clients' complaints of sexual harassment or whether the interviews would be taken to prepare for the County's defense in anticipation of litigation. The letter also stated that the difference has to do with whether the statements would later be discoverable in litigation. (Meyers Depo., p.7; Meyers Exhibit 1.)

51. Marty Meyers testified that the question posed in the letter had to do with whether the statements would be discoverable and nothing more. He further testified he hasn't studied the Open Records Act and doesn't know if whether the documents are discoverable has anything to do with what is discoverable. (Meyers Depo., p. 14.)

52. Marty Meyers suggested in his testimony that the role of Mark Bennett in this matter can be analogized to insurance defense work, in which a lawyer has to make a choice of whether to "investigate the policy, the coverage issue for the insurer, or whether he's going to leave that matter to someone else and act as the lawyer defending the insured. (Meyers Depo., p.8.)

53. Marty Meyers as counsel for the three women who filed complaints against the County, testified he would like to see the Bennett Report. (Meyers Depo., p. 12.)

54. Marty Meyers testified he stated in his letter to Mark Bennett that he understood the witnesses' statements would be kept confidential. (Meyers Depo., p.13.)

55. Richard V. Eckert has provided a sworn affidavit that he hired Mark Bennett as outside legal counsel for his expertise in civil and criminal litigation because of the impending administrative adjudication and anticipated lawsuits. He further states Mark Bennett was hired for his extensive legal background and interrogative skills necessary to search for legally relevant facts, that would be significant to the defense of the County, as opposed to an investigator or human resource professional, who would not have known how to investigate for the specific preparation of a defense for the County. The County Counselor was selected to hire someone to represent the County, because the Commission was faced with an innately legal issue, thus the Director of Human Resources was for good reason not involved in the selection of legal counsel. (Richard V. Eckert Affidavit)

56. Plaintiff's City Editor, Fred Johnson, made a written request on May 3, 2000, under the Kansas Open Records Act (KORA), to the County for access to the County's records on the Bennett Report regarding the investigation.

57. The County responded to the request through the County Counselor, Mr. Richard V. Eckert, on May 5, 2000, denying the request and citing K.S.A. 45-221(4), (11), (25) and (30), and specifically alleging the attorney-client privilege as the grounds for denial of the request.

Was the actions of the Defendant in denying Plaintiff access to the Bennett Report contrary to law and in violation of the Kansas Open Records Act, for which a judgment of declaratory judgment, an injunction from violation of the act and/or an order of mandamus should issue?

The Plaintiff, Stauffer Communications, Inc. publishes the newspaper, The Topeka Capital-Journal. The editor, on behalf of the newspaper, made a demand under the Kansas Open Records Act, (K.S.A. 45-221 et seq.) hereinafter referred to as KORA to obtain access to the "Mark Bennett Report" hereinafter referred to as the "report".

The request asks for the "report" as it related to Mr. Bennett's investigation of Shawnee County's Jail Administration, policies, procedures and potential issues of sexual harassment. (Pl. Ex. 1 - Petition)

The request under KORA was denied by the County Counselor, Richard V. Eckert, citing exemptions to KORA, as set forth under K.S.A. 45-221(2)(1) (4)(11)(25) and (30). (Def. Letter to Pl. 5/5/00, Def. Answer, and Def. Trial Brief).

The Plaintiff filed suit, asking that the court issue a declaratory judgment that the Defendant, Shawnee County, acted contrary to law and in violation of KORA; that an order issue enjoining the Defendant from any further violations of KORA; that an order of mandamus issue compelling the Defendant to comply with the law now and in the future and issue a copy of the "report"; for attorneys fees under K.S.A. 45-222(c), and Plaintiff's costs.

The Defendant has answered and responded, and the parties agreed to submit the case to the court based on the pleadings, court file, depositions and briefs as of December 18, 2000. The court ordered and has made an in camera inspection of the two part "report," dated January 22, 2000 and April 14, 2000, pursuant to K.S.A. 45-222(b). The matter is now ripe for a de novo decision pursuant to K.S.A. 45-222(b).

An overview of the KORA may be helpful to the parties understanding of the court's resolution of this dispute.

The KORA took effect January 1, 1984. Three attempts were made to obtain this type of legislation in 1980, 1981, and 1982 and it was approved in 1983 to take effect in 1984. It was patterned on a similar enactment of the State of Kentucky and the Federal Freedom of Information Act. ("Letting the Sunshine In: An Analysis of the 1984 Kansas Open Records Act," Ted P. Frederickson*, pp. 207-209, 33 K.L.R. 205 (1985).

For purposes of this discussion the article, supra pp. 207-208, further states in part:

"The law features a strong statement of public policy in favor of open records, and states that it should be construed liberally to carry out that clear legislative intent. Public agency is defined to include not only state and local governments, but other entities receiving public money...Public record is defined broadly to include recorded information in any form in the possession of a public agency...maintained by legislators or members of governing bodies of political subdivisions are excluded. Public records are to be open for inspection by any person, and suitable facilities and hours must be maintained for inspection . . .If the records sought are exempted from disclosure by one of thirty-five specific exceptions in the law or by another statute, the records need not be provided. If records contain both information that must be disclosed and information exempted from disclosure, the agency may excise the exempted materials but must release the rest. Jurisdiction to resolve a records dispute is placed in the district court in the county where the records are located, and the case should be heard at the earliest possible date. Remedies include injunctions, mandamus, or other appropriate orders..." Although the act contains no civil or criminal sanctions for failure to provide records, the prevailing party-either the person seeking the records or the agency-may get attorney fees if the court finds bad faith.

For purposes of statutory construction, it is a fundamental rule that the intent of the legislature governs and that intent should be determined from the entire act. Effect must be given, if possible, to the entire act and every part thereof. To this end, it is the duty of the court, as far as practicable, to reconcile the different provisions so as to make them consistent, harmonious and sensible. (See State v. Cole, 238 Kan. 370, 710 P.2d 25 (1985); Harris Enterprises, Inc. v. Moore, 241 Kan. 59; 734 P.2d 1083 (1987); Aves v. Shah, 258 Kan. 506, 906 P.2d 642 (1995).

Of the several issues the court must decide, in this case, the first is a consideration of the nature and type of records demanded by the Plaintiff.

The legislature has declared that: "It is declared to be the public policy of this state that public records shall be open for inspection by any person unless otherwise provided by this act, and this act shall be liberally construed and applied to promote such policy . . ." (Emphasis supplied, K.S.A. 45-216(2))

Public record has been defined to mean: ". . .any recorded information, regardless of form or characteristics, which is made, maintained or kept by or is in the possession of any public agency. (Emphasis supplied, K.S.A. 45-217(f)(1)). Here it is not disputed that the "report" is at least maintained, kept or in possession of Shawnee County, a public agency, and the court finds that it is a "public record" subject to KORA.

Plaintiff in it's petition has asked this Court to find and enter a declaratory judgment that the Defendant's actions were contrary to law and in violation of the KORA; that the records Plaintiff seeks are public records, not subject to exemption under the KORA. Plaintiff further asks this Court to enjoin the Defendant from "any further violations of the Kansas Open Records Act", and for an order in mandamus "compelling Defendant to comply with the law and Plaintiff's request for access to public records now and in the future."

For Plaintiff's attorney fees under K.S.A. 45-222(c); and for Plaintiff's costs.

Plaintiff's first claim, an ongoing injunction, is improper, and should be denied. The fact Plaintiff asks for injunctive relief "now" under KORA would not be a proper utilization of injunctive relief. To enjoin the Defendant from "any further violations of the Kansas Open Records Act" and compel "Defendant to comply with the law and Plaintiff's request for access to public records now and in the future" does not constitute a proper remedy under the facts of this case. An injunction is an equitable remedy and does not issue as of course. Ross v. Federal Highway Adm., 972 F. Supp. 552. An injunction would not be a proper remedy to give relief to any violations of KORA presently alleged. An injunction is an equitable remedy which operates in futuro to prevent later acts. (See Andell v. Woods, 174 Kan. 556, 258 P.2d 285 (1953).

The court has wide discretion in granting injunction relief. Atchison, T. & S. F. Co. v. Hamilton, 130 Kan. 685, 288 P. 560 (1930). Before injunction relief would be proper, Plaintiff should demonstrate there is no adequate remedy at law. Tyler v. City of Manhattan, 857 F. Supp. 800. To issue an injunction into the future against the Defendant, as it would relate to KORA, with its 35 exceptions, would lack certainty which is required of all judgments. Bandel v. Pettibone, 211 Kan. 672, 508 P.2d 487 (1973).

Plaintiff has asked for a judgment for mandamus, if appropriate.

K.S.A. 60-801 defines the nature of a mandamus action. It states:

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.

A declaratory judgment to compel the Board of County Commissioners to disclose the "report" would be an extra ordinary remedy, inherent in the authority of the court, but should only be exercised to compel a public officer to perform a clearly defined duty, one imposed by law, and not involving that agency's discretion. It should only be awarded upon showing that a claim is clear and certain and the duty of the officer involved must be ministerial, plainly defined, and peremptory. (See Prairie Band of the Pottawatomie Tribe of Indians v. Udall, 355 F. 2d 364; Kansas Code of Civil Procedure Annot. 3rd, Vol. 2, Gard, Casad, Commentary, K.S.A. § 60-801, 802(a)(b).

The court finds that if the Plaintiff is entitled to relief, an order of mandamus directed to the County Commissioners to turnover the "report" would be the appropriate remedy. The Plaintiff's claim for attorney's fees and costs will be hereinafter decided.

That, however, does not conclude the court's analysis of the issues in this case. The legislature having declared it's public policy of making any record maintained by a public agency to be open for inspection, then set forth (38) specific exemptions to its stated purpose. (K.S.A. 45-221(a)(1)-(38).

The Defendant claims that if the "report" is found to be a public record, it is nevertheless exempt from disclosure pursuant to the grounds as set forth in K.S.A. 45-221(a) (1), (2),(4), (11), (25), and (30). The Defendant affirmatively asserts it's not required to disclose the "report" as it is protected based on the attorney-client privilege and attorney work product doctrine. Further, the Defendant also claims attorney fees alleging that Plaintiff has not acted in good faith.

The entire KORA is a balance between the right of citizens to obtain and inspect public records unless the custodian of the records can cite a specific statute that exempts the information from disclosure. ("Letting the Sunshine In", p. 206, supra). The exemptions, the court assumes, were put in place by the legislature for reasons of public policy, and they represent a codification of prior law (work product and/or attorney/client privilege) or a codification of present current public policies that bars disclosure of public records. For example, see K.S.A. 45-221(a), (30), where public records of a personal nature would constitute a clearly unwarranted invasion of personal privacy.

The exemptions claimed by the Defendant are set forth in K.S.A. 45-221 as follows:

(a) Except to the extent disclosure is otherwise provided by law, a public agency shall not be required to disclose:

(1) Records the disclosure of which is specifically prohibited or restricted by federal law, state statute or rule of the Kansas supreme court of the disclosure of which is prohibited or restricted pursuant to specific authorization of federal law, state statute or rule of the Kansas supreme court to restrict or prohibit disclosure.

(2) Records which are privileged under the rules of evidence, unless the holder of the privilege consents to the disclosure.

. . . .

(11) Records of agencies involved in administrative adjudication or civil litigation, compiled in the process of detecting or investigating violations of civil law or administrative rules and regulations, if disclosure would interfere with a prospective administrative or civil litigation or reveal the identity of a confidential source or undercover agent.

. . . .

(25) Records which represent and constitute the work product of an attorney.

. . . .

(30) Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy.

K.S.A. 45-221, 1999 Supp.

(A) The report is claimed to be exempt by the Defendant, under K.S.A. 45-221(a)(1), which provides an exception to the Act for records, such that a public agency shall not be required to disclose:

Records the disclosure of which is specifically prohibited or restricted by federal law, state statute or rule of the Kansas supreme court or the disclosure of which is prohibited or restricted pursuant to specific authorization of federal law, state statute or rule of the Kansas supreme court to restrict or prohibit disclosure. (K.S.A. 45-221(a)(1) (Emphasis supplied)

The attorney-client privilege has long been recognized and is codified in K.S.A. §60-426. If it is found to be applicable, it forms not only an exemption under K.S.A. 45-221 (2)(1) of KORA but also because it is in itself, a separate and distinct exemption from disclosure under KORA, K.S.A. 45-221(a)(2).

Likewise, the "work product" of an attorney, if found to be applicable, is a specific exemption under KORA, K.S.A. 45-221(a)(25), but also should be read through K.S.A. 45-221(a) as constituting a separate exemption, as part of a "state statute". K.S.A. 60-226, provides in substance that in discovering materials for litigation, " . . . the court shall to protect against disclosure of the mental impressions, conclusions, opinions or legal theories of an attorney . . ."

(B) Attorney-Client Privilege

The attorney-client privilege is set forth in K.S.A. 60-426(a) as follows:

" . . .communications found by the judge to have been between lawyer and his or her client in the course of that relationship and in professional confidence, are privileged, and a client has a privilege (1) if he or she is the witness to refuse to disclose any such communication, and (2) to prevent his or her lawyer from disclosing it, and (3) to prevent any other witness from disclosing such communication if it came to the knowledge of such witness (i) in the course of its transmittal between the client and the lawyer, or (ii) in a manner not reasonably to be anticipated by the client, or (iii) as a result of a breach of the lawyer-client relationship. The privilege may be claimed by the client in person or by his or her lawyer, or if an incapacitated person, by either his or her guardian or conservator, or if deceased, by his or her personal representative." (Emphasis supplied)

Further K.S.A. 60-426(c) provides:

(1) "[C]lient" means a person or corporation or other association that, directly or through an authorized representative, consults a lawyer or lawyer's representative for the purpose of retaining the lawyer or securing legal service or advice from the lawyer in his or her professional capacity . . . (2) "communication includes advice given by the lawyer in the course of representing the client and includes disclosures of the client to a representative, associate or employee of the lawyer incidental to the professional relationship . . . ." (K.S.A. 60-426(c) (Emphasis supplied)

The attorney-client privilege rule has been summarized in Kansas in Cypress Media, Inc. d/b/a The Kansas City Star v. City of Overland Park, 268 Kan. 407, pp. 417-418, 997 P.2d 681(2000), as follows:

"(1) Where legal advice is sought (2) from a professional legal advisor in his capacity as such, (3) communications made in the course of that relationship (4) made in confidence (5) by the client (6) are permanently protected (7) from disclosures by the client, the legal advisor, or any other witness (8) unless the privilege is waived. See 8 Wigmore on Evidence § 2292 (McNaughton rev. 1961"); State v. Maxwell, 10 Kan. App. 2d 62, 63, 691 P.2d 1316 (1984).

(C) Attorney Work Product Rule and K.S.A. §60-226

The attorney work product rule was first recognized in Hickman v. Taylor, 329 U.S. 495, 91 L.Ed. 451, 67 S.Ct. 385 (1947). There it was recognized that information which an attorney secures from a witness while acting for his client in anticipation of litigation, although not privileged, still did not need to be produced or disclosed because it would violate the privacy of an attorney's course of preparation, with an adverse impact on the administration of justice.

There it was said:

"Historically, a lawyer is an officer of the court and is bound to work for the advancement of justice while faithfully protecting the rightful interest of his clients. In performing his various duties, however, it is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel. *511 Proper preparation of a client's case demands that he assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference. That is the historical and the necessary way in which lawyers act withing the framework of our system of jurisprudence to promote justice and to protect their clients' interests. This work is reflected, of course, in interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and countless other tangible and intangible ways--aptly though roughly termed by the Circuit Court of Appeals in this case (153 F.2d 212, 223) as the "Work product of the lawyer.' Were such materials open to opposing counsel on mere demand, much of what is now put down in writing would remain unwritten. An attorney's thoughts, heretofore inviolate **394 would not be his own. Inefficiency, unfairness and sharp practices would inevitably develop in the giving of legal advice and in the preparation of cases for trial. The effect on the legal profession would be demoralizing. And the interest of the clients and the cause of justice would be poorly served.

Our court recognized the rule of Hickman v. Taylor, supra, in Alseike v. Miller, 196 Kan. 547, 557, 412 P.2d 1007 (1966) where our court said:

"This is designed to protect from inquiry what has come to be known as the lawyer's "work product" to the extent of placing beyond the reach of the discovery procedure any writing prepared by or under the supervision of, an attorney in preparation for trial. These cover the lawyer's own notes, memoranda or anything which reflects is "mental impressions, conclusions, opinions or legal theories" including statements he takes from witnesses (see Hickman v. Taylor, 329 U.S. 495, 508, 67 S.Ct. 385, 392, 91 L. Ed. 451, 461). As to these writings the trial court has no discretion to require their production (see Gard's Kansas Code of Civil Procedure, p. 137), and in this respect our rule differs from the more flexible federal rule on the subject laid down in the Hickman case wherein some discretion is left in the trial judge to weigh the need for the material against the policy consideration protecting it as a product of trial preparation.

The policy basis for the work product rule is the need for the lawyer handling a case to have full rein to develop his theory and strategy in the case if the adversary system is to work effectively. To perform this role the lawyer needs to be able to work without fear of disclosure, at least in the earlier stages of preparation. And he needs protection from the possibility that he will be cast in the role of a witness and, even worse, of a witness antagonistic to other witnesses upon whose testimony his client's case may depend (see concurring opinion of Justice Jackson in Hickman v. Taylor, supra).

Subject to some limitations the work product rule is recognized under a state statute, K.S.A. 60-226(b) where it is said: " . . .a party shall not require a deponent to produce, or submit for inspection, any writing prepared by, or under the supervision of, an attorney in preparation for trial." As stated earlier, it provides: " . . .the court shall protect against disclosure of the mental impressions, conclusions, opinion or legal theories of an attorney . . ."

Similar to the facts here was Upjohn Company v. United States, 449 U.S. 383, 101 S. Ct. 677, where plaintiff's general counsel, as a part of its investigation regarding questionable payments to foreign government officials, sent a questionnaire to its foreign managers and they were returned to its general counsel. The general counsel also interviewed the recipients of the questionnaire and company officers and employees. Subsequently the IRS began an investigation to determine the tax consequences of the questionable payments and demanded the questionnaires, memoranda and notes of the interviews. Plaintiff refused to produce the documents citing both the attorney-client privilege and declared that the writings constituted work product of the attorneys in anticipation of litigation.

Justice Rehnquist, speaking for the court, addressed the issues of attorney-client privilege and the attorney work product doctrine when it concerned a corporation or inanimate entity. [Such as the Shawnee County Commission here] (See Upjohn, supra, 386). The lower courts had found the communications were not those of a "client" and thus not protected.

After recognizing that the attorney-client privilege as being the oldest privilege known to the common law, and that full and frank communication between attorney-client promotes a broader public interest of the administration of justice, the Supreme Court reversed the lower court and found that the lawyer-client privilege applied to Upjohn employees making communications to general counsel in order [for management] to secure legal advice from counsel. (Upjohn, supra, 394). The communication by Upjohn employees to counsel were covered by the attorney-client privilege regarding both the questionnaires and the notes reflecting responses to their counsels interview questions.

Because the questionnaires completed by Upjohn employees came from all over the world, the IRS said it needed the attorney's notes and memorandum of witnesses of oral statements because of the almost impossible task of the IRS interviewing Upjohn employees. The court relying on the work product doctrine stated the attorney's notes need not be disclosed. The rule protects an attorney's mental processes. To force a disclosure of his notes would tend to reveal his mental processes. ("what he saw fit to write down regarding witness remarks",) citing Hickman v. Taylor, 329 U.S. 495, 513, 516-517. ("the statement would be his [the attorney's] language, permeated with his inferences. Upjohn, supra, 399-400).

The court ultimately found on p. 401 of Upjohn, that the notes and memoranda sought by the IRS was work product based on oral statements. The court stated: "If they reveal communications they are protected by the attorney-client privilege. To the extent they do not reveal communications, they reveal the attorney's mental process in evaluating the communications." (Upjohn, supra, 401). The work product doctrine excludes their production.

A second case, similar to the facts of this case, was related in Defendant's brief as Harlandale School Dist. V. Cornyn, S.W.3d (Tex. App. A [3rd Dist.] 2000. A copy is attached to Defendant's brief. The court need not relate all the facts, but in substance the attorney was investigating sexual harassment allegations by a lady against the Harlandale campus police, and the attorney was to provide legal advice and make a report as to liability to the school district. The entire report was found to be exempt from disclosure because of attorney-client privilege. The issue is not whether an investigation is authorized but whether an investigation is made in order to provide legal advice. (Emphasis supplied). If so, it is privileged. This court finds that Bennett was not just investigating but investigated with the objective of recording his findings to provide legal advice to the County Commission to act on behalf of Shawnee County.

The court here finds that Mark Bennett's "report," after an in-camera inspection, parallels the facts and findings as set forth in Upjohn and Harlandale, supra, and should therefore be exempt from production based on the Upjohn rationale of being protected under the intertwined doctrines of the work product and the attorney-client privilege. This court finds that the Shawnee County Commission would be a "client" under the aforegoing rationale, and that the advice given by Mark Bennett to the County Commission in the course of his representation is protected. (See also, Kan. Atty. Gen. Opinion No. 99-48; Sprague v. Thorn Americas, Inc., 129 F.3d 1355 (10th Cir. 1997). Cypress Media, supra; Fisher v. United States, 425 U.S. 391, 403, 48 L.Ed. 2d 39, 96 S.Ct. 1569 (1976); State v. Maxwell, 10 Kan. App. 2d 62, 63, 691 P.2d 1316 (1984).)

Because both the attorney-client privilege and work product doctrines are the subjects of statutory enactment, the "report" should not be disclosed as provided by the KORA exemption K.S.A. 45-221(a)(1). The "report" is also found to be exempt from disclosure under the separate KORA sections, K.S.A. 45-221(a)(1), (a)(2), (a)(25).

The essential facts supporting the conclusion include, inter alia, the following:

1. Shawnee County as a "client" under K.S.A. §60-426(c)(1) hired and engaged Mark Bennett, an attorney, of 40 years experience, to investigate and give legal advise to the County. (Meier Depo., 15, 17, 37, 42, 45, 52; Ensley Depo., p. 18; Kane Depo., pp. 6, 7, 16; Richard V. Eckert Affidavit).

2. At all times material he was acting in the capacity of an attorney and made his interviews of jail personal with a view of advising the County as to legal recommendations not only to correct areas of potential liability but also to advise candidly as to liability regarding existing claims which had been made. (Bennett Depo., pp. 8, 10, 15, 31, 33, 40.)

3. The County was in need of immediate legal advice due to formal written complaints which had been filed November 9, 1999 and in anticipation of lawsuits. Other complaints followed on November 10, 1999. The investigation was ordered November 10, 1999 based on EEOC complaints. (Def. Motion to Dismiss, Ex. 1, Def. Brief Facts ¶4)

4. The hiring of Bennett was directly tied to concern over litigation. (Meier Depo. P. 52). Action in fact was taken on the legal advice of the "report." (Kane Depo., p.12).

5. Bennett also testified that the persons interviewed were promised confidentiality. (Bennett Depo. p. 16).

(D) Confidentiality Rule

There is yet a third area recognized by Kansas Law protecting communications.

That rule, was announced in Berst v. Chipman, 232 Kan. 180, 653 P.2d 107 (1982). This was a case where the NCAA sought to protect it's records on the grounds of "confidentiality" and lawyer client privilege. (Emphasis supplied). The supreme court said that when a claim is made on the grounds of "confidentiality" the court, in an in-camera hearing must review the material and sanction from discovery the confidential information using a balancing test as set forth in the case. The point of this case is that it recognizes that many times the assurance of confidentiality must be given to a witness to obtain the facts and evidence in the first instance. The rationale of this rule is that it does not rely on either the attorney-client privilege or the work product doctrine to protect communications and writings. It recognizes that the information should be protected, if it was elicited under a promise of confidentiality.

The rule in Berst, supra, presents more than an interesting issue under KORA §45-221(d), which the court will later address. Berst needs to be considered because it injects the issue of whether statements and information obtained may be subject to non-disclosure based on "how it" was obtained i.e. confidentiality. Here it is not necessary for the court to decide if the "report"should be shielded from disclosure under Berst, supra, because it has decided the "report" is exempt from disclosure under K.S.A. 45-221(a),(1),(2), and (25), but the rule needs to be considered as it relates to defendant's claimed exemption under KORA 45-221(a), (11), and (30) and the redacting provisions of KSA §45-221(d).

The record here is clear that essential portions of the "report" was obtained based on Mark Bennett's interviews. All witnesses were promised confidentiality subject to some order of a court. That he and the County would do everything possible they could to keep that private and a number were told that the attorney-client privilege and work product privilege would apply. (Bennett Depo. p.16). He conferred with 50-60 employees and former employees of the Department of Corrections. He made findings of fact and conclusions of law based on the interviews. (Bennett Depo. pp. 16-17).

One of the areas found in Berst, supra, to justify non disclosure was the public interest being served by certain types of reports and inquires where, as here, the thrust was not only to defend against present and potential litigation, but to eliminate or improve a problem. Recommendations were made by Bennett to his client and action was taken. (Kane Depo., p. 12, p.14). This rule is set forth here because the court believes it should also be considered in determining defendant's exemption under KORA 45-221(a), (11), and (30).

In it's brief, Defendant claims an exemption under K.S.A. 45-221(a)(11), which provides an exemption for records if they were involved or compiled in the process of detecting or investigating violations of civil law or administrative rules and regulations, if disclosure would interfere with a prospective administrative adjudication or civil litigation or reveal the identity of a confidential source or undercover agent. Under the facts of this case, the court does not find the first portion of the exemption to be applicable. This exemption was intended to prevent an agency from investigating and continue to investigate and use that pretext to not disclose records. The burden would be on the agency to show how disclosure would impair prospective administrative or civil litigation. (See Bristol-Meyers Company. v. Federal Trade Commission, 424 F.2nd 935, 138 U.S. App.D.C. 22). However, to the extent that information was obtained from "confidential" witnesses as stated in the later part of the statute it would apply. The court finds under this statute, reinforced by Berst v. Chipman, supra, the names of confidential providers of information should be protected. Therefore the names of the providers of facts to Bennett should be protected and for that reason neither the names of providers of information to Mark Bennett nor his recording of their comments need be redacted under K.S.A. 45-221(d).

INVASION OF PERSONAL PRIVACY K.S.A § 45-221 (a)(30).

The KORA provides an exception from disclosure of "public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy." K.S.A. 45-221(a)(30).

The court has been unable to find a Kansas decision interpreting this exemption.

The "Report" has information of a very personal nature as it relates to some employees, past and present. The summaries contain information relating to personal relationships among co-workers and information about employee gatherings off duty and not on county property or the jail. Some information is based on hearsay, but when given or provided to Defendant's attorney based on assurances of confidentiality, the court finds the declaiming party had an expectation of privacy.

This exemption was patterned after an exemption found in the Kentucky Act and was intended to exempt information in government records that relate to a person's private life which have no bearing on matters of public interest. (See, Let the Sunshine In, supra, p. 256).

A Kentucky case construing similar language had declined to tip the balance in favor of disclosure, although federal courts under the Federal Freedom of Information Act provides otherwise. (See, Let the Sunshine In, supra, p. 257).

A Kentucky case, Board of Education of Fayette County v. Lexington-Fayette Urban County Human Rights Commission, 625 S.W. 2nd 109, construed the Kentucky Statute having an exemption similar to the one adopted in Kansas. (K.S.A. §45-221(a)(30). On page 110 of the Kentucky case, the recognition of a person's right of privacy, and the right to be left alone has long been recognized. (Board of Education v. Lexington-Fayette Urban Co., supra, p. 110). Rejecting the view of the Federal Freedom of Information Act in tilting the balance toward disclosure under this exemption, the Kentucky court believed it should apply a test of balancing the interests of the parties as well as those of the public measured by the standard of the reasonable man. (Fayette Co., supra, p. 111). Again what a reasonable man might expect, which would incorporate privacy, and including the confidentiality test set forth in Berst v. Chipman, supra, and the exemption relating to "confidential sources" under K.S.A. 45-221(a)(11), the tilt under this exemption should be for non-disclosure, and this court so finds.

This exemption states:

"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."

Plaintiff points out that Defendant did not offer evidence on this point and raises an issue of the effect of the "report being cited or identified in an open meeting or on an agenda of an open meeting.

Neither party has presented the court with authority interpreting this provision. The court is not aware of the factual sequence of what, if anything, was on in an agenda of an open meeting or cited in an open meeting.

Therefore, the court finds that Plaintiff has not sustained its burden of proof in showing how this item would cause production of the report, and the defendant has failed in its burden of proof to show that the "report" is exempt under this item.

Plaintiff has argued that the County has a duty to provide the "report" and merely redact portions of the "report" that would be exempt. The requirement is set out at K.S.A. 45-221(d) which states in part that "[i]f a public record contains material which is not subject to disclosure pursuant to this act, the 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 this act." K.S.A. 45-221(d)(emphasis added). The court finds based on the reasons above set forth, that the "report" is either privileged [attorney-client] in its entirety, constitutes work product, or is the result of confidential informants with a right to privacy. Therefore, the court denies this portion of Plaintiff's petition.

The court finds this was legitimate controversy and dispute, brought and defended in good faith. Each parties claim for attorney's fees against the other is denied.

The court is required to construe the Kansas Open Records Act, (KORA), in its entirety, with a view to reconcile its conflicting provisions.

The Act is a recognition by the legislature, of the peoples right, in their continuing efforts of self government through elected officials, to access public records and information from their officials for that purpose. This is the announced public policy of the State in the Act. The legislature also recognized that there are other public policies and private rights, equally important, which must be balanced against the public policy of open records, and this was done with some 38 enacted exemptions to producing public records. This act is a significant improvement from where the people found themselves prior to the enactment of KORA. Before, the burden was on the people to prove what records were required to be kept and produced, and that they were entitled to those records. Now, the burden has shifted to the custodian to produce the records or the custodian has the burden to show why the records are exempt from production. (Let the Sunshine In, supra, 205-206)

Even government agencies such as Shawnee County, operating through its County Commissioners, are in need of legal advice. Legal advice was asked for here not with the view of operating "in secret", but as the deposition and affidavits show, for the purpose of the elected officials discharging their duties to the public and to taxpayers, to minimize the cost of legal claims by taking corrective action and to avoid or minimize potential legal judgments now and in the future. The Plaintiff had a legal right to ask for Public Records. The Defendant, as a "client", had a legal right to decline production of the public records based on the exemptions of KORA as they related to that advice. These are the same exemptions, which are available to any corporation, or entity, such as Upjohn or the N.C.A.A. When there is a controversary, the court is then required to construe KORA, based on legislative intent, and "tip" the balance based on the four corners of KORA, as applied to the facts of this case. The court believes this has been done, and the "Issue" hereinbefore set forth on page 12 must be answered in the negative.

The court, for the reasons set forth in this opinion, has found that the Shawnee County Commissioners have met the burden of proving exemptions; they have proved that because of the attorney-client privilege, the work product doctrine and other statutory exemptions set forth in K.S.A. 45-221(a), (11) and (30), that the Bennett Report is exempt in its entirety from disclosure. The parties respective claims for attorneys fees are denied. Court costs are assessed to the Plaintiff.

For purposes of appeal, the Bennett Report produced for an in-camera inspection has been re-sealed and placed with the court reporter, Division I, as Defendant's Ex. "A", to be re-opened only upon further order of a court of competent jurisdiction.

IT IS THEREFORE SO CONSIDERED, ORDERED, ADJUDGED AND DECREED.

This memorandum shall constitute the order of the Court and no further journal entry is required. Dated at Topeka, Kansas, the date and year above set forth.

 
__________________
Jan W. Leuenberger
District Court Judge

I hereby certify that a copy of the above and foregoing Order was mailed, by the United States mail, first-class postage prepaid, to the following this 12th day of January , 2001.

Michael W. Merriam, 700 SW Jackson, Roof Garden, Topeka, Kansas 66603.

Richard V. Eckert, Lisa R. Jones, 200 SE 7th, Suite 100, Topeka, Kansas 66603.