                                         No. 116,038

             IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                       TRINA GREEN,
                                        Appellant,

                                              v.

                    UNIFIED GOVERNMENT OF WYANDOTTTE COUNTY/
                             KANSAS CITY, KANSAS, et al.,
                                     Appellees.


                               SYLLABUS BY THE COURT


1.
       The Kansas Open Records Act provides in K.S.A. 45-216(a) that it is the policy of
this state that public records shall be open for inspection by any person unless specifically
provided otherwise by statute.


2.
       Consistent with the policy that public records generally be open for inspection, the
Kansas Open Records Act provides in K.S.A. 2016 Supp. 45-222(c) that a public agency
denying disclosure of a record has the burden of proof in court to show that its action was
proper.


3.
       When a defendant files a motion to dismiss the plaintiff's claim because it fails to
state any viable claim for legal relief, the district court must accept the facts included in
the plaintiff's petition. The court cannot resolve factual disputes on this motion, so it must
resolve any doubt about the facts in the plaintiff's favor.




                                               1
4.
        When a plaintiff's petition presents allegations that, if true, would give the district
court discretion to order disclosure of public records, that petition cannot be dismissed on
a motion to dismiss for failure to state a claim upon which relief may be granted.


        Appeal from Wyandotte District Court; DANIEL A. DUNCAN, judge. Opinion filed May 26, 2017.
Reversed and remanded.


        Derrick A. Pearce, of Peterson & Associates, P.C., of Kansas City, Missouri, for appellant.


        Jane A. Wilson, assistant counsel, Unified Government of Wyandotte County/Kansas City, for
appellees.


Before LEBEN, P.J., POWELL and SCHROEDER, JJ.


        LEBEN, J.: The Kansas Open Records Act begins with a simple proposition: "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." K.S.A. 45-216(a). The
Act also provides that it "shall be liberally construed and applied to promote" this policy
of openness. K.S.A. 45-216(a). And in any court action seeking to enforce disclosure of
records, a public agency refusing to produce records has the burden of proof to show that
it wasn't required to disclose the records. K.S.A. 2016 Supp. 45-222(c).


        With these concepts in mind, we consider what happened when Trina Green asked
to see records about the shooting of her son by law-enforcement officers from the
Wyandotte County Sheriff's Department. Specifically, she asked to see the records about
the shooting from the sheriff's department and the Kansas City (Kansas) Police
Department. Those departments refused her request, citing an exception to disclosure for
criminal-investigation records that's found in a statute, K.S.A. 2016 Supp. 45-221(a)(10).




                                                    2
       That exception isn't iron-clad, though. It provides that the district court "may order
disclosure of such records, subject to such conditions as the court may impose, if the
court finds that the disclosure" is in the public interest; wouldn't interfere with a law-
enforcement investigation; wouldn't reveal confidential sources, techniques, or agents;
wouldn't endanger anyone's safety; and wouldn't reveal any specific identifying
information of the victim of a sexual offense (like the name or phone number of the
victim). K.S.A. 2016 Supp. 45-221(a)(10)(A)-(F). By providing that the district court
"may order disclosure," the statute tells us that the district court has discretion when
making this judgment call. Given the public policy for disclosure, though, one would
think that if the court finds disclosure would be "in the public interest" and none of the
harms listed in K.S.A. 2016 Supp. 45-221(a)(10)(A)-(F) would arise on disclosure, then
the records should be disclosed.


       Given this background, what happened in the district court when Green sued to get
the court to order production of records related to her son's shooting is strange.


       The defendant in the case—the Unified Government of Wyandotte County/Kansas
City, Kansas ("the Unified Government")—filed a motion to dismiss her case on the
ground that it failed even to state a proper claim for legal relief. The Unified Government
argued that disclosure of the records wasn't required because a criminal investigation was
ongoing. Based on that, the Unified Government asked the court to dismiss Green's claim
"with prejudice," meaning that she could not file again in the future seeking the same
records.


       When a defendant files a motion to dismiss the plaintiff's claim because it fails to
state any viable claim for legal relief, the district court must accept the facts included in
the plaintiff's petition as true. The court cannot resolve factual disputes at this point, so it
must resolve any doubt about the facts in the plaintiff's favor. See K.S.A. 2016 Supp. 60-



                                               3
212(b)(6); Steckline Communications, Inc. v. Journal Broadcast Group of Kansas, Inc.,
305 Kan. 761, Syl. ¶ 2, 388 P.3d 84 (2017).


       Green's petition had alleged that a sheriff's deputy had fired a handgun "multiple
times into the body" of her son, nearly killing him. The petition alleged that production of
the records had been refused based on the criminal-investigation exception but that no
one had explained "how the release of the requested information would interfere with law
enforcement action, criminal investigations, and future prosecutions." And the petition
alleged that disclosure of the records was in the public interest, noting that several media
outlets in Kansas City had published stories about the shooting.


       As we've already noted, in considering a motion to dismiss, the district court had
to accept the facts included in the petition as true. In addition, the Kansas Open Records
Act also provides—as Green noted in her petition—that a public agency denying
disclosure of a record has the burden of proof in court to show that its action was proper.
See K.S.A. 2016 Supp. 45-222(c). So it should be clear that the district court could not
properly dismiss Green's claim based just on the allegations of the petition. Yet the
district court not only granted dismissal of Green's petition, it also dismissed the petition
with prejudice—presumably preventing her from later seeking a court order to disclose
the records even after all investigations had been completed.


       How did the district court explain this decision? It said that it was acting "based
upon its findings and utilizing the discretion provided under K.S.A. . . . 45-221(a)(10)."


       We don't know what "findings" the district court may have made; it didn't provide
any factual findings in its two-paragraph order. But a district court is not to make factual
findings on a motion to dismiss for failure to state a claim. Instead, it's supposed to accept
the facts that have been included in the plaintiff's petition. Steckline Communications,
Inc., 305 Kan. 761, Syl. ¶ 2.


                                              4
       Subsections (B) through (F) of K.S.A. 2016 Supp. 45-221(a)(10) do provide some
factors the court must consider, such as whether disclosure would interfere with a
criminal investigation (subsection [B]) and whether disclosure would endanger anyone's
life or safety (subsection [E]). But we don't know anything about how the district court
may have analyzed whether any of the potential harms listed in subsections (B) through
(F) were likely to arise from disclosure because other than telling us the conclusion—that
it was "utilizing the discretion" provided by the statute—it gave no other information
about how it had exercised its discretion. Instead, the district court appears to have simply
decided that disclosure shall not be made whenever a law-enforcement agency objects,
even though the statute clearly gives the court discretion to order disclosure in such cases.


       If the court had taken testimony or otherwise assembled an evidentiary record so
that it could rule on the merits of Green's disclosure request, it would have abused its
discretion by failing actually to exercise that discretion and weigh the competing factors
listed in the statute. See State v. Horton, 292 Kan. 437, 440, 254 P.3d 1264 (2011). Here,
though, the district court didn't even get that far—there was no evidence before the court,
so it had to accept Green's allegations as true. Green's petition had alleged, with factual
support, that disclosure was in the public interest and the responding agencies hadn't
offered an explanation as to how release of the records would interfere with their
investigations. In these circumstances, the district court would have the discretion to
order disclosure of these records after consideration of the factors set out in K.S.A. 2016
Supp. 45-221(a)(10). It abused its discretion by ruling without an evidentiary record and
without weighing the statutory factors.


       The district court's judgment is reversed, and this case is remanded to the district
court for further proceedings.




                                              5
