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Of all the headline-grabbing stories in the wake of the “chilling” raid of a community newspaper and two private residences in Marion this past summer, none was more important than the coverage of the affidavits the Marion police chief had signed to justify the search warrants. Commentators were swift to condemn the affidavits as devoid of probable cause to support the issuance of the warrants, and the county attorney’s decision to withdraw them and return all seized items was immediately validated.
The events in Marion highlight the importance of access to probable cause affidavits that support warrants executed by law enforcement. The good news is that members of the public have been authorized to request the disclosure of such affidavits since state law was amended in 2014. The Legislature’s express intent was to make affidavits more transparent, and there are numerous instances over the years where such requests have been granted.
However, under the law, judges are still authorized to seal affidavits under enumerated circumstances. Affidavits are not always disclosed. Why, then, and how often, are judges ordering disclosure of some affidavits and sealing others? Almost 10 years later, to what extent have the 2014 amendments to state law furthered the Legislature’s intent to promote transparency in law enforcement?
Obtaining court records under the Kansas Open Records Act is the only way for the public to get the primary source information it needs to draw general conclusions about how laws are applied and how well they work. To learn about probable cause affidavits specifically, such requests would focus on cases where members of the public sought disclosure. Then, it would be possible to count and compare the number of times judges granted or denied requests for affidavits and document their reasoning.
Unfortunately, Kansas Rule Relating to District Courts 106B, which is intended to increase efficiency in district courts, impedes that objective.
Rule 106B (formerly Rule 196), which ostensibly covers only electronic court records, may well apply to all court records in the state now that every district court manages its records online. It provides in pertinent part that “each electronic case record is available only individually.” It mandates that requests for electronic court records are subject to denial if they the court considers them to be requests for “compiled information,” and further provides that “bulk distribution will not be available.” Moreover, KORA allows a public agency to rely on court rules when determining whether to deny a records request.
The rule “was adopted to prevent courts from being overwhelmed by requests for bulk or compiled information,” said Lisa Taylor, public information director for the Office of Judicial Administration.
Increasing efficiency of district court staff by curtailing to some extent the volume of bulk records requests is surely worthwhile. But because of Rule 106B, a district court is authorized to deny requests for court records unless the request indicates the name of a party or a case number. As a result, even though court records in adult criminal cases are presumptively open in this country, searching for such records in any other way, such as by the type of crime charged or over a range of dates, is prohibited.
Even so, under KORA, a public agency can always choose to exercise its discretion to disclose a record, even if an exception applies. Thus, I recently forged ahead with an attempt to learn how judges respond to requests to disclose probable cause affidavits in certain jurisdictions over a certain time. Armed with that information, I would be able to electronically search to determine the outcome of each request. Then, I would have a meaningful sample size from which to report about how many times, and under what circumstances, judges have granted, partially granted, or denied requests to disclose probable cause affidavits.
With these goals in mind, I sent substantially similar KORA requests to the district courts in the five most populous counties in the state (Johnson, Sedgwick, Shawnee, Wyandotte, and Douglas) for “records sufficient to identify every criminal case originally docketed between September 1, 2022, and August 31, 2023, in which was filed at least one request for disclosure of the probable cause affidavit in support of arrest pursuant to K.S.A. 22-2302 or search pursuant to K.S.A. 22-2502.”
My hopes were buoyed when the district courts in Douglas, Shawnee and Sedgwick each produced a list of cases in which affidavits had been requested within the range of dates I had provided. They did so promptly and did not charge a fee.
“A court that fills (a KORA) request for bulk or compiled information at its own discretion reflects only that court’s ability. It is not a measure that every other court can easily do the same,” Taylor said.
The two other courts — Johnson and Wyandotte — chose to deny my requests because Rule 106B prohibits disclosure of “compiled” or “bulk” records. As a result, any conclusions to be drawn about affidavits will not have the benefit of relevant information from the courts situated in the largest metropolitan area of the state.
To promote uniformity and reasonable public access to court records, the Kansas Supreme Court ideally would consider revising Rule 106B to scale back its reach. To be clear, the rule should not be stricken in its entirety because there is no question that district courts have a legitimate interest in regulating access to their own records. All states have implemented some version of a court rule related to dissemination of electronic court records, and it is well-established that “the courts themselves retain authority over the dissemination of court records.”
Yet, if the Court were to review Rule 106B, it could choose to do as other states both near and far have done to balance district courts’ legitimate interest in controlling their records against the public’s right to “free access to records in a criminal case.”
For example, neighboring Nebraska and Colorado are among those allowing for specific, albeit qualified, access in keeping with the notion that court records, even those stored electronically, are presumed open to the public. In Nebraska, “bulk distribution or collection of court records and information” is permissible “for certain scholarly purposes such as research, evaluative, or statistical activities sponsored or approved by the Nebraska Supreme Court or Court Administrator.” The Nebraska Supreme Court has also established a subscription service for the media to pay for enhanced access to the case management database.
Meanwhile, Colorado has developed a particular form for the media and others to use when requesting “compiled data,” which that state defines as data “derived from the selection or reformulation of specific database fields”. The form requires the requester to describe the “intended use” of the data to ensure that requests for “compiled data” are sufficiently in the public interest. Arkansas and Indiana require similar forms. Wyoming, North Dakota and Idaho are among those that have adopted procedures for the public to access “compiled data” in the public interest but do not require a particular form.
The Wyoming rule is a particularly good example of how to regulate the dissemination of “bulk” or “compiled” data in a manner consistent with the presumption of openness. It establishes criteria to weigh the interests of the requester against the interests of the court: “Any person may request compiled information. … Requests for compiled information shall identify what information is sought, describe the purpose for requesting the information, explain how the information will benefit the public interest, and explain provisions for the secure protection of any information requested.”
Adopting that sort of language in Kansas would give members of the public a means to articulate their interest in the court records they are seeking and district courts the opportunity to deny requests that are not squarely in the public interest. Such a rule would balance these important yet competing interests.
As the affidavits related to the Marion search warrants reminded us, more access to government records is always better than less. Kansas could act based on other states’ experience and adopt a rule that would afford limited access to “compiled” or “bulk” records. Revising Rule 106B in this manner would empower Kansans and promote transparency while still affording district courts control over dissemination of their records.
— Max Kautsch is an attorney whose practice focuses on First Amendment rights and open government law.
Through its opinion section, the Kansas Reflector works to amplify the voices of people who are affected by public policies or excluded from public debate. Find information, including how to submit your own commentary, here. Find how to submit your own commentary to The Lawrence Times here.
Kansas Reflector is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Kansas Reflector maintains editorial independence. Contact Editor Sherman Smith for questions: info@kansasreflector.com. Follow Kansas Reflector on Facebook and Twitter.
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