Proponent Testimony, HB 2571, House Judicial Committee

February 13, 2018

Re: Proponent Testimony, HB 2571, House Judicial Committee, Blaine Finch, Chairman

Chairman Finch and members of the House Judicial Committee:

I respectfully submit this statement in support of HB 2571[1] in my capacity as legal hotline attorney for the Kansas Press Association, the Kansas Association of Broadcasters, and the Kansas Sunshine Coalition for Open Government, as well as in my individual capacity as a Kansas attorney focused on Sunshine Laws and the First Amendment.[2]  I also am a member of the adjunct faculty at Washburn University teaching Mass Media Law, although the views I express herein are not offered on behalf of the University and are strictly my own.

Kautsch Law, LLC

The Kansas Open Records Act (KORA), as interpreted by Kansas courts, effectively enables law enforcement agencies to exercise discretion to permanently deny public access to any records defined to be “criminal investigation records.” [3]  As a result, if an agency chooses to deny access, Kansans are unable to obtain records related to criminal investigations, even those related to events that took place years or decades ago.  Although KORA provides for the aggrieved party to file a lawsuit in district court against the agency that issued the denial, such lawsuits are rare, expensive, and largely ineffective, as recently demonstrated when a district court judge refused to order disclosure of investigatory records related to the first few years of the 1988 disappearance of Randy Leach to his parents, Harold and Alberta.[4]  Further, the provision in current law that purportedly allows family members prompt access to body camera footage that captures the death of a loved one is ineffective, as demonstrated when the parents of Topeka’s Domonique White were forced to file a court case last year to even qualify to view the footage of their son’s death.[5]

Change is needed.  If HB 2571 were to become law, KORA would more effectively balance the transparency interests of grieving family members and the public at large against privacy concerns related to disclosure of information that law enforcement agencies compile during criminal investigations.

Current law

Currently, the applicable statute provides that enforcement agencies “shall not be required to disclose” criminal investigation records.[6]  Thus, closure of the records is discretionary.  As long as the agency chooses to claim that the records are related to a “prospective law enforcement action, criminal investigation, or prosecution,”[7] they need not be released, and a requestor’s recourse is to file a lawsuit in district court.[8]

Once in court, the requestor must prove that disclosure of the records is in the “public interest” before the court considers whether disclosure would result in one of five harms enumerated in the statute.[9]  However, the term “public interest” is not defined in the law, creating ambiguity and uncertainty in litigation.

Further, the Kansas Supreme Court held in 1987 that in order to prove that disclosure of the records would be in the public interest, the requestor must show that the records relate to a “matter which affects a right or expectancy of the community at large and must derive meaning within the legislative purpose embodied in the statute.”[10]  In addition to this ambiguous standard of proof thrust on the person seeking records, the Court also held that, even if a trial judge finds a “public interest in the disclosure of records,” the judge still has “sound discretion to find they contained no information which would ‘promote the public interest….’”[11]

The standard set forth by the Court is extremely difficult to meet, and even an attempt to satisfy it can cost thousands of dollars in attorney fees.  Moreover, this standard applies no matter how old the records.  As a consequence, family members may grieve for decades without being able to view records of a law enforcement agency’s investigation into how and why they lost a loved one.

HB 2571, Sec. 2: modernizing the “criminal investigation records” exemption

To more effectively balance the interest of law enforcement agencies and the public, Section 2(h) of the bill follows the lead of 10 other states[12] and would mandate disclosure of records of criminal investigations that are considered inactive, while also mandating nondisclosure of records of investigations that are considered active, ongoing, or prospective.  Some of these 10 states, including Minnesota and Missouri, share a general approach, reflected in Section 2(h)(1)(A) of the bill, to define an inactive case as one that the agency decides “not to pursue.”[13]  While that standard is somewhat ambiguous, these states offset the ambiguity by also generally requiring disclosure of criminal investigation records once the applicable statute of limitations has expired, when a defendant has exhausted his or her rights of appeal, or after a certain number of years pass.  This approach, taken in states such as Minnesota, Missouri, and Oregon, is reflected in the bill at Section 2(h)(1)(B).[14]

Further, another seven states and the District of Columbia employ a balancing test that recognizes that law enforcement’s interest in closure lessens as the years go by, resulting in a presumption of access to inactive cases.[15]  Even among the states that allow agencies discretion to decide when to release criminal investigation records, many provide enforcement mechanisms to more effectively challenge that discretion, such as Ohio’s “inexpensive appeals process” that became law in 2017.[16]   Moreover, my research has yet to uncover another state that requires requestors to prove that disclosure is “in public interest,” without a statutory definition or list of factors that guide agencies and courts in determining whether records should be disclosed.  As such, it is fair to say that the language in K.S.A. 45-221(a)(10), as construed by the state Supreme Court,[17] denies Kansans access to information that is generally available in other states.

In HB 2571 were to become law, its practical effect would be that law enforcement could no longer indefinitely refuse to disclose criminal investigation records, even if the case associated with those records is decades old. While Section 2 certainly affords the public more access to criminal investigation records than current law, it also protects law enforcement from potential discretionary disclosure of active investigation files, which is allowable under current law.  As a result, it better balances the competing interests at stake.

HB 2571, Sec. 3: Access to body camera footage for “an heir at law”

KORA also unreasonably restricts access to law enforcement body camera footage, and Section 3 of HB 2571 offers solutions.  Section 3(b) would allow disclosure of such footage to the subject of that footage, or to “an heir at law” of the subject if deceased, within 24 hours.  Further, Section 3(d) of the bill would mandate disclosure of video to the public, upon request, within 5 days, if law enforcement video “documents (1) the discharge of a firearm by a law enforcement officer in the course of duty, other than for training purposes or the killing of an animal that is sick, injured, or dangerous, or (2) the use of force by a law enforcement officer that results in great bodily harm.”[18]  However, Section 3(e) also includes a laundry list of exceptions under which law enforcement may obscure footage, such as if it depicts nudity.[19]  However, like laws in some other states, the bill also requires disclosure, without obscuring or redacting the footage, if a law enforcement officer is the cause of death or great bodily harm.[20]

Section 3(g)(2) would also define “an heir at law”[21] so that in the future, families such as the Whites will not have to go to court and wait over two months to obtain footage that depicted the taking of the life of a loved one.  I would also respectfully suggest deleting the words “the next of kin” that appear on page 13, line 3 of the bill.  These words appear nowhere else in HB 2571, and the bill and the statute it would amend already refer to anyone with a familial relationship to a decedent as “an heir at law.” Therefore, that one instance of “the next of kin” in the bill should be stricken and replaced with “an heir at law.”

Through timely disclosure of video, police can be transparent and likely verify that they performed their duties in a professional way.[22]  To be sure, prosecutors and defense attorneys may object that, if police video is relevant to a pending criminal case, its release to the public could result in prejudicial pretrial publicity.  They also may argue for a delay in release of such video.  However, the Kansas Supreme Court has held continuously and recently that the earlier video is released, the less likely it is to be prejudicial.[23]  Moreover, in the Kansas judicial system, claims of juror prejudice due to publicity typically fail.[24]

The public has a right to know when law enforcement seriously injures or kills someone.  Section 3 reflects an effort to strike the correct balance between accountability and privacy.

HB 2571, Sec. 1: making copies of A/V if “duplication equipment” available

Section 3 presumes that public agencies should be required to disclose copies of audio and video.  Because our society has embraced digital technology, the format of such disclosure could be anything from a CD to a shared file the recipient downloads from a link.[25]

However, K.S.A. 45-219(a), which hasn’t been amended since its enactment in 1984, provides that public agencies generally need not provide copies of audio or video footage to records requestors.[26]  To correct that notion, Section 1(a) of SB 360 generally requires agencies to provide copies, but does not mandate that agencies make such copies in all circumstances.  Instead, the bill requires, like Missouri’s law, that an agency provide copies of recordings, but only if the agency possesses “duplication equipment”.[27]

Section 1(a) would also amend K.S.A. 45-219(a) so that a public agency can’t assess costs for fees prior to determining which records are available.  Under K.S.A. 45-219 as currently worded, an agency can choose to assess a high fee just to determine whether it has the records requested.[28]  As a result, a requestor might pay a public agency for a determination that the agency doesn’t have the requested records and receive nothing.  The proposed language[29] would make clear that public agencies have a responsibility to determine whether they have requested records before imposing a fee on a requester.

Conclusion

Passage of this bill would reduce the broad discretion KORA affords law enforcement agencies to close criminal investigation records indefinitely.  The bill would make clear when and under what circumstances agencies must disclose a criminal investigation record, including body camera or vehicle camera footage.  The bill also would protect members of the public requesting records from the unreasonable legal and logistical hurdles current law erects.

These matters are at top of mind for the public.[30]  I am hopeful that the committee gives the bill careful consideration.  I have posted this testimony online so the hyperlinked references are readily available.[31]  Please do not hesitate to contact me if I can be of any assistance.

Max Kautsch is the Kansas legal hotline attorney for the Kansas Press Association, the Kansas Association of Broadcasters, and the Kansas Sunshine Coalition for Open Government, and is an adjunct faculty member at Washburn University teaching Mass Media Law.  Send him an email here.

Endnotes

[1] HB 2571, introduced January 30, 2018.

[2] http://kautschlaw.com/about/

[3] K.S.A. 45-217(c); K.S.A. 45-221(a)(10); Harris Enterprises, Inc. v. Moore, 241 Kan. 59, 66 (1987).

[4] Rochelle Valverde, Documents in 30-year-old Randy Leach case to stay sealed, judge rules; parents remain in the dark (January 29, 2018), http://www2.ljworld.com/news/2018/jan/29/judge-rules-documents-30-year-old-randy-leach-case/.

[5] Katie Moore, Body camera footage to be shown to Dominique White’s father on Friday, Topeka Capital-Journal (Dec 14, 2017), http://www.cjonline.com/news/local/crime-courts/2017-12-14/body-camera-footage-be-shown-dominique-white-s-father-friday.

[6] K.S.A. 45-221(a)(10).

[7] K.S.A. 45-221(a)(10)(B).

[8] K.S.A. 45-222.

[9] Harris, 241 Kan. 59, Syl. 3.; K.S.A. 45-221(a)(B)-(F).

[10] Harris, 241 Kan. 59, Syl. 4.

[11] Id., 66-67

[12] Arkansas (only records related to “undisclosed investigations” are subject to nondisclosure under Ark. Code. Ann. § 25-19-105(b)(6), and only records of “ongoing criminal investigations” are exempt.  Martin v. Musteen, 303 Ark. 656, 799 S.W.2d 540 (1990); McCambridge v. City of Little Rock, 298 Ark. 219, 766 S.W.2d 909 (1989)); Florida (active criminal intelligence information and active criminal investigative information are exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution.” Fla. Stat. 119.071); Georgia ( only “records compiled for law enforcement or prosecution purposes to the extent that production of such records is reasonably likely to disclose the identity of a confidential source, disclose confidential investigative or prosecution material which would endanger the life or physical safety of any person or persons, or disclose the existence of a confidential surveillance or investigation” are exempt under GCT § 50-18-72); Iowa (only records related to an “ongoing investigation” are exempt from disclosure under Iowa Code Title 1, Chapter 22.7); Kentucky (“public records exempted under this provision shall be open after enforcement action is completed or a decision is made to take no action” under KRS 61.878(1)(h)); Louisiana (only “Records pertaining to pending criminal litigation or any criminal litigation which can be reasonably anticipated, until such litigation has been finally adjudicated or otherwise settled, except as otherwise provided in Subsection F of this Section” are exempt under La. Rev. Stat. Ann. § 44:3(A)(l)); Minnesota (“Inactive investigative data are public unless the release of the data would jeopardize another ongoing investigation or would reveal the identity” of a protected person as defined elsewhere in the statute, Minnesota Statute 13.82, Subd. 7); Missouri (“investigative reports of all law enforcement agencies are closed records until the investigation becomes inactive” under MRS 610.100.2(2)); New Mexico (only records that “reveal confidential sources, methods, information or individuals accused but not charged with a crime” are exempt under NMS 14-2-1(A)(4)); and North Dakota (“Active criminal intelligence information and active criminal investigative information” exempt from disclosure under NDCC 44-04-18.7.3).

[13] Language adapted from Minnesota Statute 13.82, Subd. 7; MRS 610.100.1(3)(a).

[14] E.g., records are disclosed after 30 years in Minnesota, 10 years in Missouri, and 25 years in Oregon.  Presumed subject to disclosure after 30 years in Nevada.  Language adapted from Minnesota Statute 13.82, Subd. 7(b); see also MRS 610.100.1(3)(b) ORS 192.390; NRS 239.0115.

[15] See, e.g., District of Columbia (law enforcement required not to disclose records “only to the extent that the production of such records would [i]nterfere with [e]nforcement proceedings” under D.C. Code § 2-534(a)(3)(A)(1)); Massachusetts (applicable law does not “create a blanket exemption for all records that investigative officials create or maintain,” A Guide to the Massachusetts Public Records Law, 2017, p. 19, citing District Attorney for the Norfolk District v. Flatley, 419 Mass. 507, 512 (1995); WBZ-TV4 v. District Attorney for the Suffolk District, 408 Mass. 595, 603 (1990)); New Hampshire (“the Federal Freedom of Information Act, 5 U.S.C. §552(b)(7), have been adopted as the standard for the disclosure or non-disclosure of law enforcement records….If the records requested are compiled for law enforcement purposes, they may be withheld if the agency can prove that disclosure would either: a. Interfere with enforcement proceedings; b. Deprive a person of a right to a fair trial or an impartial adjudication; c. Constitute an unwarranted invasion of privacy; Reveal the identity of a confidential source, and in the case of a record compiled by a law enforcement authority in the course of a criminal investigation or by any agency conducting a lawful national security investigation, confidential information furnished only by a confidential source; e. Reveal investigative techniques and procedures; or f. Endanger the life or physical safety of any person.” New Hampshire Attorney General’s Memorandum on New Hampshire’s Right-To-Know Law, RSA Chapter 91-A, 2015. pp. 30-31); Vermont (see 1 V.S.A. § 317(5)); Washington (“If the investigation has been closed or referred to the prosecutor for a charging decision, the exemption in RCW 42.56.240(1) no longer applies categorically, and the agency must conduct a record-by-record analysis to determine if that exemption or a different exemption applies.” Sargent v. Seattle Police Dept., 314 P.3d 1093 (2013)); West Virginia (“To the extent that information in an incident report dealing with the detection and investigation of crime will not compromise an ongoing law enforcement investigation, we hold that there is a public right of access under the West Virginia Freedom of Information Act.” West Virginia Ogden Newspapers, Inc. v. City of Williamstown, 192 W. Va. 648, 453 S.E.2d 631, Syl. 1 (1994)) and Wisconsin (No blanket rule closing criminal investigation records—balancing test must be done on a case-by-case basis. See Wisconsin Public Records Law Compliance Guide, 2015, Wisconsin Attorney General, p. 39, citing Linzmeyer v. Forcey, 254 Wis.2d 306 (2002)).

[16] WLWT 5 Cincinnati, New public records appeals process to begin in Ohio; Appeal to cost $25, much less than lawsuit (September, 2017), http://www.wlwt.com/article/new-public-records-appeals-process-to-begin-in-ohio/3613245.

[17] See Harris.

[18] Language adapted from Minnesota Statute 13.825, Subd. 2(a)(1).

[19] Language adapted from MRS 610.205.1; Okla. Stat. tit. 51 §24A.8(A)9, 10; and K.S.A. 45-221(a)(10)(B)-(F).

[20] See, e.g., Missouri, MRS 610.205.1, and Oklahoma, Okla. Stat. tit. 51 §24A.8(A)9, 10.

[21] Language adapted from MRS 610.205.1(1), (2) and (3).

[22] See Teri L. Hansen, Body cameras promote trust, improve transparency for officers, McPherson Sentinel (April 7, 2017), http://www.mcphersonsentinel.com/news/20170407/body-cameras-promote-trust-improve-transparency-for-officers (quoting an assistant police chief in McPherson as saying, ““Our officers, being highly trained and very professional, strive to maintain their integrity by being more transparent.  Though they know they are often videotaped by the public, body cameras provide an additional eye witness to the situations they encounter.”)

[23] See State v. Carr, 300 Kan. 1, 68 (2014) (observing that the potential for prejudice due to publicity diminishes over time and that a lapse of three months “would ordinarily be sufficient to dissipate any pretrial publicity arising at the preliminary hearing.” (reversed on other grounds by Kansas v. Carr, 136 S. Ct. 633 (2016), citing State v. Higgenbotham, 271 Kan. 582, 592 (2001)).

[24] Max Kautsch and Mike Kautsch, Probable Cause Affidavits Open in Kansas, Journal of the Kansas Bar Association (May, 2015) (“There is no Kansas Supreme Court case where the Court found that the defendant failed to receive a fair trial because of pretrial publicity alone, even though the contention has been frequently advanced.”).

[25] In 2018, virtually any modern computer can use software that constitutes “duplication equipment.”  Free software for copying digital audio files options include Audacity, and there and there are lots of options for free video editing software, such as iMovie or Lightworks.

[26] A public agency “shall not be required to provide copies of radio or recording tapes or discs, video tapes.”  K.S.A. 45-219(a).  See Ted P. Frederickson, Letting the Sunshine In: An Analysis of the 1984 Kansas Open Records Act, 33 U. Kan. L. Rev. 205, 227 (1985).

[27] Language adapted from MRS 610.010(2).

[28] For example, the KBI, in response to a request by Fox 4 News, sought to charge $4,025.00 as an “estimated cost” to undertake the review of documents requested, rather than first undertaking the review and then assessing a copy charge.  Letter from KBI, March 4, 2016.  In another instance, Leavenworth County quoted $1,934.52 as an “estimated” cost in its response to a request made by a member of the public this past November.  Letter from Leavenworth County, November 17, 2017.  The practical effect of responses such as these is that the requested records are simply unavailable because the agency is not complying with its implicit responsibility to assess the request before charging a fee.  The proposed language would make that responsibility more explicit.

[29] Language adapted from MRS 610.026.2.

[30] See, e.g., Lawrence Journal-World Editorial Staff, Stepping into the Sunshine, Lawrence Journal-World (February 9, 2018, http://m.ljworld.com/news/2018/feb/09/editorial-stepping-sunshine/.

[31] Maxwell E. Kautsch, Proponent Testimony, HB 2571, House Judicial Committee (February 12, 2018), http://kautschlaw.com/.