Opinion
112,704.
08-14-2015
Kenneth LEEK, Appellant, v. Brett PETERSON, et al., Appellees.
Kenneth D. Leek, appellant pro se. Sherri Price, special assistant attorney general/legal counsel, Lansing Correctional Facility, for appellee.
Kenneth D. Leek, appellant pro se.
Sherri Price, special assistant attorney general/legal counsel, Lansing Correctional Facility, for appellee.
Before PIERRON, P.J., McANANY, J., and BURGESS, S.J.
MEMORANDUM OPINION
PER CURIAM.
After the authorities at Lansing Correctional Facility refused to allow Kenneth Leek access to a certain handbook, Leek filed a petition for mandamus in the district court. Although he originally argued that the Kansas Open Records Act (KORA) allowed him access to the handbook, Leek ultimately claimed that another statute required the facility to turn over the handbook. The district court found no clearly defined duty by the facility and denied the petition. Leek appeals. We affirm.
Factual and Procedural Background
While incarcerated at Lansing Correctional Facility, Leek requested disclosure of the Disciplinary Procedure Handbook for Use in the Inmate Disciplinary Procedure by Correctional Staff and Hearing Officers (Handbook). The warden's office refused, reasoning that the Handbook was “Staff Read Only” and therefore not available to Leek.
In response to this decision, Leek filed a formal grievance. The unit team manager for the facility responded that the Handbook was both “ ‘Staff Read Only’ “ and “ ‘Confidential and Privileged Attorney–Client Communication’ “ and not available for dissemination. Dissatisfied with this outcome, Leek forwarded his grievance to the warden's office, but the warden responded that the unit team's response was appropriate. Leek appealed this decision to the Secretary of Corrections, whose designee deemed the facility's response to be appropriate.
Having exhausted his administrative remedies, Leek continued to pursue disclosure of the Handbook by filing a petition for mandamus with the district court that requested access to the Handbook under KORA. However, filing and procedural issues hampered Leek's prosecution of the petition, and the facility filed multiple motions to dismiss. At a hearing on the matter, Leek argued not that KORA obligated disclosure but that he was entitled to review any policy or procedure used by the correctional facility as long as that policy did not pertain to security matters. The district court responded that unless Leek could demonstrate a duty by the facility to turn over the Handbook he could not succeed in a mandamus action. In a subsequent motion response and a memorandum of law supporting his petition for mandamus, Leek relied almost entirely on a different, non-KORA statute and contended that the Handbook constituted a rule or regulation that required disclosure by the facility.
Over 1 year after Leek first sought disclosure of the Handbook, the district court denied his petition. The district court determined that Leek failed to provde supporting authority under KORA. Moreover, the district court ruled that, on its face, the Handbook did not appear to be a rule or regulation and that any uncertainty as to the Handbook's classification eliminated the possibility that the facility was duty bound to disclose it. Without such a duty, the district court determined that mandamus relief was not available to Leek.
Leek timely appealed.
Analysis
Did the district court err in denying Leek's petition for mandamus?
On appeal, Leek presents two arguments as to why the district court erred in denying his petition. First, he contends that the district court needed to conduct an in camera inspection of the Handbook to determine whether it was privileged. Second, he argues that the Handbook is definitely a rule or regulation with the force and effect of law and that, as such, the facility had a clearly defined duty to disclose it. These two arguments, although briefed separately, are actually intertwined.
Starting with Leek's first issue, Leek requested in a motion response that the district court conduct an in camera review of the Handbook. The record is unclear whether the district court indeed conducted this review, as the order denying the petition discusses both the facility's description of the Handbook and the Handbook's facial appearance. However, both parties seem to agree on appeal that the district court never inspected the Handbook. For purposes of this opinion it is assumed that the district court never reviewed the Handbook.
KORA permits the district court to conduct an in camera inspection of the records at issue “on its own motion, or on motion of either party.” K.S.A.2014 Supp. 45–222(b). But this language does not require in camera inspection of disputed documents; instead, it merely authorizes such a review. See Cypress Media, Inc. v. City of Overland Park, 268 Kan. 407, 429, 997 P.2d 681 (2000) ; Harris Enterprises, Inc. v. Moore, 241 Kan. 59, 67, 734 P.2d 1083 (1987). Because the district court is open to decide whether to review the documents in controversy, this decision lies within the district court's discretion which is only abused when the district court's decision is arbitrary, fanciful, or unreasonable. See Northern Natural Gas Co. v. ONEOK Field Services Co., 296 Kan. 906, 935, 296 P.3d 1106, cert. denied 134 S.Ct. 162 (2013) (defining abuse of discretion).
Aside from a few blanket assertions that the facility needed to better demonstrate the Handbook's privileged nature, Leek has never offered any serious justifications for the district court to conduct an in camera inspection. Additionally, Leek more or less abandoned this privilege argument in order to argue that another statute—namely, K.S.A. 75–5256(b) –required disclosure regardless of the outcome under KORA. While Leek originally relied on KORA terminology to compel the Handbook's disclosure, he changed tactics during the hearing before the district court and continued to rely on this new legal theory in his subsequent filings. In fact, in his response to the facility's motion to dismiss, Leek contended that K.S.A. 75–5256(b) required disclosure despite the privilege claim, and his memorandum of law supporting the petition focuses on why that statute compels the Handbook's disclosure. In other words, Leek essentially abandoned disclosure under KORA in order to pursue his claim under K.S.A. 75–5256(b).
This statute 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 or regulations and orders relating to emergency or security procedures.”K.S.A. 75–5256(b).
Relying heavily on this language, Leek contends that the Handbook must be disclosed because it is a rule or regulation. Additionally, the question of whether the Handbook constitutes a rule or regulation plays into Leek's argument concerning the lack of in camera inspection. Leek argues that the district court ruled on the Handbook's contents “without ever seeing the document.”
Under the rules and regulations filing act, 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). This definition is very similar to the traditional definition of regulation, which is “[a]n official rule or order, having legal force, usu[ally] issued by an administrative agency.” Black's Law Dictionary 1475 (10th ed.2014). Similarly, a rule is “[a] regulation governing a court's or an agency's internal procedures; esp[ecially], the whole or any part of an agency statement of general or particular applicability and future effect, designed to implement, interpret, or prescribe law or policy or to describe the organization, approval, or practice requirements of the agency.” Black's Law Dictionary 1529 (10th ed.2014).
With these definitions in mind, this court has previously held that the policies and handbooks of the Sexual Predator Treatment Program (SPTP) are not rules and regulations. In Lovingood v. Kansas Dept. of SRS, No. 105,225, 2011 WL 3250595 (Kan.App.2011) (unpublished opinion), an SPTP patient challenged a policy found in one of the program's handbooks, arguing in part that the policy needed to be formally promulgated as a rule or regulation. Although the dispositive issue on appeal concerned the patient's standing, this court also determined that the policy in question did not constitute a rule or regulation. 2011 WL 3250595, at *2–3. Instead, the court reasoned that because the policy was “limited to cover only the few people within the confines of the [SPTP] and no one else,” it was not one of general application across the state and therefore fell outside the definition of a rule or regulation. 2011 WL 3250595, at *3.
Later, this court applied the same reasoning to other SPTP policies and handbooks. Merryfield v. Sullivan, No. 108,805, 2013 WL 4404416, at *3–4 (Kan.App.2013) (unpublished opinion). There, a patient argued that the SPTP's property and clothing handbook constituted a rule or regulation and needed to be promulgated accordingly. The district court reasoned that the handbook and policies were “ ‘established for internal management of the treatment program and agency, and not as a policy of general public application,’ “ and this court agreed. 2013 WL 4404416, at *4. After specifically referencing Lovingood, this court held:
“[T]he policies and handbook that [patient] complains about are not rules of general application. In fact, the policies and handbook only apply to the limited number of residents in the SPTP program.... [T]he polices and handbook do not fit within the definition of a rule or regulation. Moreover, the SPTP policies and handbook do not have the force and effect of law.” 2013 WL 4404416, at *4.
Although Leek is not a patient in the SPTP, this court's rationale in Lovingood and Merryfield is still relevant. The instant facility describes the Handbook in this case as a document “created to assist Department of Corrections' hearing officers to comply with the legal mandates applicable to the inmate disciplinary processes and procedures.” This description indicates that the Handbook is not one of general application but rather one that applies only to certain employees of the Department of Corrections. Additionally, nothing in this description suggests that the Handbook carries the force and effect of law. If anything, it is described merely as a procedural guidebook. If the Handbook is not a rule or regulation, it is exempt from the mandate of K.S.A. 75–5256(b), and the facility is under no obligation to disclose it.
It is on this basis that the district court found that mandamus relief was inappropriate and rejected the petition. Generally speaking, “[m]andamus is a proceeding to compete 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.” K.S.A. 60–801. But mandamus cannot require performance of a discretionary act or enforce a right that is in dispute. Schmidtlien Electric, Inc. v. Greathouse, 278 Kan. 810, 833, 104 P.3d 378 (2005). Instead, mandamus can compel only “the performance of a clearly defined duty.” 278 Kan. at 833. Additionally, the burden of snowing the right to mandamus relief is on the petitioner. Kansas Medical Mut. Ins. Co. v. Svaty, 291 Kan. 597, 620, 244 P.3d 642 (2010).
As previously explained, Leek changed legal horses midstream and relied entirely on K.S.A. 75–5256(b) to establish a duty. But because the Handbook is not a rule and regulation, this statute did not obligate the facility to disclose its contents. Without such a duty, mandamus relief is not appropriate. See Schmidtlien Electric, Inc., 278 Kan. at 833. Therefore, the district court did not err in denying the petition.
Returning to Leek's argument regarding in camera inspection of the Handbook against this backdrop demonstrates that the district court did not abuse its discretion. Because Leek abandoned his KORA argument, the only remaining reason for the district court to inspect the Handbook was to establish whether it constituted a rule or regulation. However, as demonstrated by the foregoing analysis, the Handbook clearly lies somewhere outside that definition. Therefore, the district court had no reason to review the Handbook in order to classify it, and the decision to forgo such a review was not arbitrary, fanciful, or unreasonable. See Northern Natural Gas Co., 296 Kan. at 935.
Leek's decision to rely solely on K.S.A. 75–5256(b) instead of KORA leaves open the question of whether the facility's claim of privilege would have withstood the scrutiny of district and appellate court review. But as the district court observed in its order, Leek provided no relevant KORA authority to compel disclosure or combat the claim of privilege. Instead, he relied on a different statute, and the duty described in that statute applies only to rules and regulations, not the Handbook. Accordingly, Leek failed to demonstrate the availability of mandamus relief. See Svaty, 291 Kan. at 620.
Affirmed.