As reported in this space earlier this week, the Kansas Supreme Court has issued an order in The World Company, d/b/a The Lawrence Journal-World v. The Honorable B. Kay Huff. The order provides that Judge Huff must file an answer by March 23, 2015 to the Journal-World’s petition in mandamus. It should be noted that although this case only pertains to arrest warrants requested under K.S.A. 22-2302, parallel provisions regarding the availability of search warrants are set forth in K.S.A. 22-2502.
The case arose after the Journal-World filed requests for disclosure of the probable cause affidavits in support of the arrest of two co-defendants charged with rape allegedly committed on the University of Kansas campus in September of 2014. The requests were filed under K.S.A. 22-2302(c)(1)(B). Although this is a new statutory procedure as of July 1, 2014, it is consistent with the general proposition that Kansas court records are presumed to be open to the public pursuant to the Kansas Supreme Court’s ruling in Kansas City Star v. Fossey. The defense attorneys and the prosecution moved to seal the affidavits under K.S.A. 22-2302(c)(3) and the judge ordered the affidavits sealed.
The Journal-World subsequently intervened as a member of the public under Fossey and Wichita Eagle-Beacon v. Owens and filed a motion in each case to unseal the affidavits, arguing that the judge failed to make the necessary findings under K.S.A. 22-2302(C)(4) to legally seal them under the statute. Defense counsel for one of the co-defendants filed a response, arguing that the affidavits should be sealed because release “could interfere with future witness interviews and evidence collection” and that it “could impact the potential jury pool” and prosecution of the case. The hearing on the Journal-World’s motion to disclose the affidavits to was set for December 19, 2014.
The underlying criminal matters against both co-defendants were dismissed on December 18, 2014. At the hearing on the motion to unseal the next day, defense counsel did not appear, and the prosecution appeared only after being instructed to do so by the judge. Counsel for the Journal-World argued that the concerns outlined in the defense’s motion opposing the disclosure of the affidavits were now moot because the cases had been dismissed, and moreover, that neither the defense nor the prosecution could show that any of the bases for closure “would” interfere with the case. The prosecution made no argument in support of the position that the affidavits should remain sealed, and only indicated that the alleged victims would like the affidavits to remain sealed.
In denying the Journal-World’s motion to unseal, the district court cited privacy concerns as a basis for keeping the affidavits sealed. It also stated that the Journal-World’s request was moot because the case had been dismissed. The orders sealing the affidavits remain in place at the time of this writing.
Believing the proper procedure had not been applied, the Journal-World appealed the judge’s ruling. In its petition for mandamus filed December 29, 2014, it argued that the Kansas Supreme Court should remand the issue to the district court because the judge had an insufficient factual basis to find that the affidavits needed to be sealed.
K.S.A. 22-2302(c)(4) provides that the judge “shall make appropriate redactions, or seal the affidavits…as necessary” to “prevent public disclosure of information that would” result in one or more of nine harms listed in K.S.A. 22-2302(c)(4)(A)-(I) and thus justify closure. (Emphasis added.) The Legislature’s use of the word “would” is important, because it means affidavits must be released if harm from disclosure is merely possible or speculative, rather than certain. As defense counsel pointed out, one of the circumstances set forth in subsection (c)(4)(C) that may result in redaction or seal of affidavits includes whether such release would “interfere with any prospective law enforcement action, criminal investigation or prosecution.” However, neither in its motion nor at any hearing did defense counsel indicate why release would cause such interference, and its motion only alleged that disclosure “could” interfere with an investigation or prosecution.
Whether the defense met its burden is irrelevant, however, because the judge did not consider that motion at the hearing on December 19. Instead, on that day the court stated “I have reviewed the affidavit. I find it includes a lot of sensitive information that certainly will follow these people forever….I also find that it is moot at this point since, as I say, the case is dismissed, and this is private matter rather than a public one at this point.”
Even though the affidavits may well include sensitive information, neither any such content nor the fact that the cases have been dismissed is a valid reason to seal the affidavits under the statute. From page 12 of the Journal-World’s mandamus petition:
“The district court did not explain whether or how a reasonably redacted affidavit necessarily would jeopardize the victims. The district court did not explain why the State’s mention of victims’ opposition to disclosure necessitated sealing the affidavits rather than releasing them with reasonable reactions. The district court did not explain how sensitive information would follow people if it were reasonably redacted before disclosure of affidavits. The district court did not explain why it treated dismissal of the cases as relevant when K.S.A. 22-2302 makes no reference of any kind to dismissal. The district court did not explain how a request for an affidavit can be ‘moot,’ even though the request was submitted in accordance with K.S.A. 22-2302. The district court did not explain how it could treat criminal cases on the public record as a ‘private’ matter, along with affidavits that are subject to the statutory presumption of openness. By failing to make specific findings that would explain its decision to seal the affidavits, the district court thwarted K.S.A. 22-2302 as an instrument of transparency in the courts.”
For all those reasons, the Journal-World took the position that the district court incorrectly applied the procedure set forth in K.S.A. 22-2302. If the Kansas Supreme Court ultimately orders reconsideration of the issue in the manner in which the Journal-World requested in its mandamus petition, the district court will need to find specifically whether or not disclosure of the affidavits would cause one or more of the enumerated harms set forth in K.S.A. 22-2302(c)(4)(A)-(I). If the court does not find that one of the harms would occur, it will need to provide the affidavits to the newspaper either in their entirety or with reasonable redactions.