Revising KORA: Modernizing the “criminal investigative records” exemption

law enforcement vehicleIt has been well-documented that, in Kansas, journalists and members of the public sometimes struggle to obtain copies of police reports and other documents related to law enforcement investigations. Law enforcement agencies often deny requests for such documents under the “criminal investigative records” exemption found in K.S.A. 45-221(a)(10) of the Kansas Open Records Act (KORA). The exemption is written in a way that allows the agencies broad authority to decide when or whether a record is investigative and can be closed. Such broad authority allows the agencies to withhold information about their activities that should be disclosed, contrary to the state’s policy “that public records shall be open for inspection by any person unless otherwise provided by this act, and this act shall be liberally construed and applied to promote such policy.” K.S.A. 45-216(a).

Therefore, the Legislature needs to modify the exemption so that law enforcement agencies cannot use it to withhold records of investigations that have ended or that are unlikely to result in detection and prosecution of a criminal. Florida is an example of a state that appropriately distinguishes between investigative records that properly may be withheld and those that should be disclosed upon request. The Kansas exemption for criminal investigation records ideally would be modified to incorporate the best features of an approach such as Florida’s.

The exemption in KORA provides in pertinent part that “criminal investigative records…means records of an investigatory agency or criminal justice agency…compiled in the process of preventing, detecting or investigating violations of criminal law.” K.S.A. 45-221(a)(10). That exemption is one of over 50 in KORA providing that a public agency “shall not be required to disclose” records of various kinds. It should be noted that the definition of “criminal investigative records” specifically excludes “police blotter entries, court records, rosters of inmates of jails or other correctional or detention facilities or records pertaining to violations of any traffic law other than vehicular homicide.” Id. Thus, law enforcement agencies cannot use the exemption as a basis to deny an open records request for the excluded items, including standard accident reports.

In addition, there are instances where law enforcement discretionarily has released information that it otherwise could withhold under the investigative records exemption. An example is when Montgomery County officials released reports related to an incident from 1998 involving a candidate for political office. However, such information is more often than not classified as an exempt criminal investigation record and is impossible for the public to access without a court order pursuant to a procedure set forth in K.S.A. 21-221(a)(10)(A)-(F).

The extremely broad scope of the first sentence of KORA’s definition of criminal investigation records confers plenty of authority to law enforcement to opt for secrecy rather than transparency, contrary to the state’s public policy. One relatively recent example of action being inconsistent with public policy was in 2010, when law enforcement responded to a 911 call from a lone individual at a Prairie Village apartment by deploying “more than 15 officers in riot gear” and surrounding the caller’s complex. The incident ended when the caller “– who had suffered for years from mental illness – was dead, shot three times by one of the officers.” Sadly, it would take the caller’s mother “two years, a lawsuit and thousands of dollars to get police reports that explained how her daughter died that day and why police had to use deadly force on a woman who had no gun.”

Another questionable application of the exemption is in the investigation involving the disappearance of Randy Leach, who has been missing since 1988. “The KBI and Leavenworth County sheriff’s deputies say they are still investigating the case and have refused requests from the parents and the Lawrence Journal-World to release them” more than 27 years later. This example highlights that, unless the interested party incurs the costly expense of legal action, the public may never receive the information it reasonably has the right to know.

As these examples illustrate, one of the main stumbling blocks for members of the public is that the existing definition of criminal investigative records contains no time limit for when an investigation has concluded. This loophole effectively allows law enforcement agencies to claim that an investigation is “ongoing” for an indeterminate amount of time, thus giving them the discretion to refuse to release any records related to the case at all under K.S.A. 45-221(a)(10).

States such as Oklahoma have sought to address this issue by listing broad categories of investigation materials that are presumptively open, regardless of what is involved in the investigation. 51 Okla. Stat. Supp. 2005 § 24A.8.A ‐ D. However, a complete overhaul of KORA is not what Fresh Takes is suggesting. Rather, KORA should be simply be amended so citizens like those in the examples above are not confronted with results that are so contrary to the state’s public policy. To that end, Fresh Takes prefers an approach based on Florida’s open records law, which of all the states best addresses the concerns highlighted in the examples above.

Florida’s law draws a distinction between “active” investigations and all other investigations, and specifically exempts “active” investigations from open records requests. 2015 Florida Statutes, Title X, Chapter 119.071(2)(c)(1). In other words, as long as a case is “active,” there is no way for the public to obtain information about it, which certainly squares with the notion that law enforcement has a strong interest in confidentiality while the case is being investigated. That interest rightfully outweighs the public’s interest in access. However, once the case is no longer “active,” Florida’s law recognizes that the balance shifts back in favor of the public’s right to know.

Florida’s open records law provides that information related to criminal investigations “shall be considered ‘active’ as long as it is related to an ongoing investigation which is continuing with a reasonable, good faith anticipation of securing an arrest or prosecution in the foreseeable future.” 2015 Florida Statutes, Title X, Chapter 119.011(3)(d)(2). Florida also creates a separate definition for “criminal intelligence information,” which is considered active if it “will lead to detection of ongoing or reasonably anticipated criminal activities.” 2015 Florida Statutes, Title X, Chapter 119.011(3)(d)(1). The definition further provides that such information “shall be considered ‘active’ while such information is directly related to pending prosecutions or appeals.” Id. Once cases are no longer “active,” the law enforcement agency is required to “permit the record to be inspected and copied by any person desiring to do so, at any reasonable time, under reasonable conditions, and under supervision by the custodian of the public records.” 2015 Florida Statutes, Title X, Chapter 119.07(1)(a).

Again, Fresh Takes is not advocating wholesale changes to KORA based on other states’ statutory schemes, but the legislative intent of the Florida language is laudable, and its principles are worth applying to KORA. The simplest way in which to do so seems to be to amend the definition of criminal investigation records as found in K.S.A. 45-217(c) so that it incorporates the definition of “active,” and narrows the exemption accordingly. Here is how the definition might be worded (changes to existing statute in italics):

(c) “Criminal investigation records” means: (1) Every audio or video recording made and retained by law enforcement using a body camera or vehicle camera as defined by K.S.A. 2016 Supp. 45-254, and amendments thereto; and (2) records of an investigatory agency or criminal justice agency as defined by K.S.A. 22-4701, and amendments thereto, compiled in the active process of preventing, detecting or investigating violations of criminal law, but does not include police blotter entries, court records, rosters of inmates of jails or other correctional or detention facilities or records pertaining to violations of any traffic law other than vehicular homicide as defined by K.S.A. 21-3405, prior to its repeal, or K.S.A. 2016 Supp. 21-5406, and amendments thereto.  Such process shall be considered “active” as long as it is related to an ongoing investigation which is continuing with a reasonable, good faith that it will lead to (1) detection of ongoing or reasonably anticipated criminal activities; (2) securing an arrest or prosecution in the foreseeable future; or (3) while such information is directly related to pending prosecutions or appeals.”

Proper application of this language would mean that once an investigation does not result in the filing of charges after a reasonable amount of time, like in the Prairie Village incident, law enforcement would simply be required to disclose the information if there is no longer a “good faith anticipation” that a “prosecution” will take place in the “foreseeable future.” The application of this tweak is even clearer in the investigation involving Randy Leach, as any claim by law enforcement that an investigation into a 1988 incident will lead to “detection of ongoing or reasonably anticipated criminal activities” or that a prosecution will commence in the “foreseeable future” seems baseless in light of the fact that no defendant has been ever been charged.

Adoption of this simple tweak to KORA would give law enforcement the same discretionary power it now enjoys with regard to investigative reports related to active investigations while also allowing the public reasonable access to government records consistent with the state’s public policy. Passing this amendment or one like it would allow the Legislature to continue to make Kansas more transparent.

Max Kautsch is the Kansas legal hotline attorney for the Kansas Press Association, the Kansas Association of Broadcasters, and the Kansas Sunshine Coalition.  Send him an email here.