Fresh Tips: Requesting disclosure of probable cause affidavits

gavelA little more than a year ago, two Kansas statutes, K.S.A. 22-2302 and K.S.A. 22-2502, were amended to give the public, including journalists, a right to see affidavits that police file to justify making arrests and conducting searches. As is often the case with new law, not everyone initially agrees on how to interpret it. So courts around the state have not all responded in the same way to requests for affidavits under the amendments. Although those who utilize these amendments to request affidavits cannot control the manner in which courts interpret them, requesters can put themselves in better position to obtain the affidavits (or subsequently litigate their denial) by drafting well-crafted requests.

The first step is to determine how to make the request in a manner authorized by the statutes. Although the statutes require no particular form, they do require that such request be made in writing “by filing such request with the clerk of the court.”  K.S.A. 22-2302(c)(2); K.S.A. 22-2502(e)(2). Note that emailing such requests is ineffective because email is not a proper manner in which to file a document with a district court. I imagine that courts will allow such requests by electronic filing at some point, but at this time, fax filing appears to be the only accepted electronic manner in which to submit these requests. Alternatively, one may send a request by postal mail or hand-deliver it.

Regardless, it is probably a good idea to contact the court clerk to verify the manner in which the court accepts such requests.  The very best practice would be to take two hard copies of the request to the clerk’s office, file one with the court, and get a file-stamped copy of the other. This makes it easy to verify when the request was made, which is important in determining whether the court has responded within 10 business days as required by the statutes.

Although no particular form is required, a standard form exists, apparently created by the Office of Judicial Administration in an attempt to streamline requests.  Other jurisdictions, such as Shawnee County, have adapted a slightly different version of the form.  Ultimately, one who prepares to make requests under these statutes should first determine whether the court prefers that a particular form be used.

Before filling out and filing the form, the the requester should do as much investigation as possible regarding the circumstances that underlie the affidavit.  The office of the court clerk is probably the best place to begin such an investigation.  Ideally, the clerk would produce, or make available via computer access, a Record of Activities (ROA), in the case that is of interest. As the name of the document suggests, it contains entries for every filing in a given case.  The ROA can be helpful in other ways, too, as it can illuminate the context for how the case has proceeded to date.

The key to making a successful request for an affidavit is to identify precisely the case in which it was issued. Generally speaking, the more correct information that appears in the affidavit request, the greater the chance that it will not be denied on procedural grounds. As such, requests should include the following:

• The case number, if available.

• If the request for disclosure relates to an arrest, it should list the name of the person arrested.

• If the request relates to a search, it should list the address searched.

• If the search was not of a home or other structure with an address, the request should detail to the extent possible the property or item searched.

• The request should also include the approximate date the warrant was executed and identify the law enforcement agency that executed it, if known.

Finally, requests under these statutes should not be confused with requests under the Kansas Open Records Act.  K.S.A. 22-2302 and K.S.A. 22-2502 were amended solely for the narrow purpose of allowing the public to gain access to probable cause affidavits.  Any request for a probable cause affidavit should not include a call for any other kind of information. Otherwise, it is highly likely to be denied on procedural grounds.

Following the prescribed statutory procedure for requesting an affidavit is essential.  Then, if the statute is interpreted adversely and the affidavit itself is withheld, the request itself will not be the reason.

For a comprehensive review of the 2014 amendments, including legislative intent, see the Journal of the Kansas Bar Association article on the subject here.