Archive for Saturday, April 14, 1990


April 14, 1990


— The state Supreme Court declared Friday that opponents of nuclear power can make public the contents of previously secret documents related to the construction and operations of the Wolf Creek nuclear power plant.

However, the state's highest court rejected an attempt by the publishers of the Topeka Capital-Journal to force the opening to the public of all court hearings involving juveniles over 15.

The court released opinions Friday in 24 cases, after hearing oral arguments in other cases throughout the week.

The court's 4-2 decision in the Wolf Creek case overturns a January 1988 order from Shawnee County District Judge James Macnish Jr. preventing distribution of documents collected as part of Kansas Gas and Electric Co.'s ``Quality First'' program. KG&E; owns 47 percent of the nuclear power plant near Burlington.

MACNISH issued the order against a Topeka attorney, Bob Eye, who represented a Wichita group, the Alliance for Liveable Electric Rates, and Stevi Stephens, the president of a Lawrence group, the Nuclear Awareness Network.

Eye and Stephens originally attempted to distribute the files during the Kansas Corporation's 1985 hearings on electric rates for KG&E;, of Wichita, and the other two owners of Wolf Creek sought to help cover the costs of building the plant. They also said the documents, containing statements from workers, would point to deficiencies at the plant.

KG&E; declined comment until its attorneys and officials have time to study the opinion.

``WE HAVE it,'' said Lyle Koerper, the company's manager of corporate communications. ``We will be reviewing it. After we have an opportunity to review it in detail, we will determine what our response should be.''

Eye said he did not know when or how he and the groups would make the information public. He said the group is concerned about protecting the workers who filed the reports.

``We will take due caution,'' he said. ``We'll go through extraordinary lengths to protect the identities of employees.''

KG&E; went to court in 1985 to stop the distribution of the documents, arguing that distributing the materials would violate copyright laws because they contain original statements by writers, materials gathered through investigations and other reports.

KG&E; ALSO said it had the right to keep the files confidential, arguing that the benefits of keeping the files confidential outweighed the benefits of making them public. The company said the reports were kept confidential to encourage workers to report problems.

In writing for the court's majority, Justice Harold Herd rejected both arguments. He joined with Justices Donald Allegrucci, Richard Holmes and Tyler Lockett to form the majority.

``It is generally recognized that the maintenance of confidential communications is an important aspect of self-critical analysis and whistle-blower programs,'' Herd wrote. ``Nevertheless, we believe the public has an overriding interest in the dissemination of information related to costs, construction and safety practices of nuclear power plants.''

``KG&E; HAS failed to show that injury caused by the disclosure of confidential information would be greater than the benefit derived by society in obtaining such information.''

Of the copyright argument, Herd said: ``The Quality First files lack creative labor. Furthermore, providing copyright protection to these facts and ideas does not support the broad public policy of disseminating works of literature.''

Chief Justice Robert H. Miller dissented, and he was joined by Justice Kay McFarland. Justice Fred Six did not participate in the case.

In his opinion, Miller said he agreed with Herd's analysis that the Quality First files did not deserve copyright protection. However, he said he disagreed that the benefit of making the information public outweighed the possible harm to KG&E; and its program.

``THE MAJORITY opinion torpedoes the program,'' Miller said. ``In this critical area of nuclear power, the majority opinion removes or at least greatly diminishes the effectiveness of a program designed to further public safety.''

Miller noted that the files have been made available to state and federal regulators.

``Those agencies, in turn, make files available at public hearings when the public interest or safety will be served,'' Miller said. ``I have faith in those agencies.''

In the other case, Stauffer Communications Inc. attempted to force Shawnee County District Judge Daniel Mitchell to open detention and other preliminary hearings in cases involving juveniles over 15. Mitchell hears all juvenile cases in the county.

IN SEPTEMBER 1989, a Capital-Journal reporter was denied access to the detention hearings for two juveniles charged with aggravated kidnapping, rape and attempted rape. Mitchell told the reporter that Kansas law did not allow for the public to be present at such hearings.

Stauffer Communications argued that such hearings should be open because the results of those hearings eventually are made public and because an open hearing requirement for cases involving juvenile offenders could be ``subverted.''

Mitchell said the preliminary hearings involved discussion of confidential records, such as reports from teachers and social workers.

In a unanimous opinion written by Lockett, the court agreed with Mitchell.

Lockett declared the application of state law ``consistent, harmonious and sensible'' under Mitchell's interpretation.

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