Sunshine Law for criminal defense counsel

[The following is an updated version of written materials I provided to the Kansas Association of Criminal Defense Lawyers for a CLE presentation on March 24, 2018.]

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“All political power is inherent in the people, and all free governments are founded on their authority, and are instituted for their equal protection and benefit.”[1] 

Introduction

When Kansas defense counsel hears the acronym “KORA”, the “Kansas Offender Registration Act” is probably what springs to mind.  However, another KORA, the Kansas Open Records Act, along with various other statutes, rules, and common law concepts, is part of a body of law that controls, to some extent, the dissemination of information to the public and its representative, the media.[2]  Such information could be published or broadcast to the public in a way that could negatively impact a criminal defendant’s right to a fair trial.  Moreover, between social media, news organizations constantly updating their content, and the 24-hour news cycle, there are more ways than ever for such information to be disseminated in a way that may prejudice a defendant.

This CLE is designed to remind defense counsel of the tools available beyond traditional criminal and civil procedure techniques to help gather and, to the extent possible, control the public dissemination of information related to criminal defense clients.

The Kansas Open Records Act (KORA)

The Kansas Open Records Act (KORA) is a necessary, but flawed, law.  Upon its enactment in 1984, a commentator noted that “[f]or attorneys and their clients, it can offer a faster, less costly and less formal alternative to formal discovery.”[3]  The individual making a request under the KORA is not subject to the restrictions on discovery set forth in K.S.A. 60-226, as “any person” may request public records under the Act.[4]  A KORA request “may secure documents more quickly, because a request must be acted upon within three days” under K.S.A. 45-218.[5]

However, even though “[a]ll public records shall be open for inspection by any person, except as otherwise provided by this act”,[6]  whether a record is available upon request often depends on whether and to what extent the public agency to whom the request is directed asserts any of the numerous exemptions set forth in the law that provide an agency “shall not be required to disclose” certain records.[7]

Before offering KORA-related strategies defense counsel might employ to assist a client, a quick review of how to use the law is in order.

What are “public records”? What is a “public agency” subject to KORA?

KORA was enacted in 1984 at K.S.A. 45-215 et seq.  The law kicks off with a strong public policy statement set forth in K.S.A. 45-216: “It is declared to be the public policy of the state 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.” [8]  However, in practice, especially with respect to criminal investigation records, discussed infra, that policy statement does not carry as much weight as perhaps the legislature intended.

Under the KORA, the term “public records” means “any recorded information, regardless of form, characteristics or location, which is made, maintained or kept by or is in the possession of” either “[a]ny public agency” or “any officer or employee of a public agency pursuant to the officer’s or employee’s official duties and which is related to the functions, activities, programs or operations of any public agency.”[9]  The second part of the definition did not exist until 2016, when that language was added as a result of governor’s refusal to provide emails sent by the budget director to lobbyists related to the 2015 budget.[10]  According to legislative testimony submitted by Attorney General Derek Schmidt, the purpose of the new definition was “to amend the Kansas Open Records Act to apply it to otherwise public records on the private email accounts of state employees.”[11]

Some records that perhaps should fit the definition are expressly excluded.  For example, “[r]ecords which are made, maintained or kept by an individual who is a member of the legislature or of the governing body of any political or taxing subdivision of the state.”  K.S.A. 45-217(g)(2)(3)(B).  This provision is intended to “exclude records kept by individual members but not records of the governing bodies they serve.  It excuses individual members of such governing bodies from the burden of producing records that they maintain personally in their performance of official duties, but the records  of the governing bodies they serve are still considered public records and thus must be made available.  The person seeking the records of the governing body must get them from the central office rather than from the individual.”[12]

Further, while “[p]ublic agency” is defined under the law as “the state or any political or taxing subdivision of the state or any office, agency or instrumentality thereof, or any other entity receiving or expending and supported in whole or in part by the public funds appropriated by the state or by public funds of any political or taxing subdivision of the state”,[13] that definition does not apply to “any municipal judge, judge of the district court, judge of the court of appeals or justice of the supreme court.”[14]

Thus, although records produced by the agencies themselves are public records, it would appear that the individuals acting in the highest branches of government are not subject to the Kansas Open Records Act.

Also excluded from the definition of public agency is “[a]ny entity solely by reason of payment from public funds for property, goods or services of such entity.”[15]  This provision “is designed to exempt vendors who merely sell goods or services to government.”[16]  It was “not the intent” of the legislature to exclude records related to “governmental work” that is performed by private entities.  However, the practical effect of the language is that agency outsourcing of traditionally governmental services can result in additional barriers to openness.  Among other instances, this issue came to light in 2015 when the Topeka school district claimed, in response to open records requests related to a driver that had been arrested on an out state felony warrant, that “information” about the driver “has to come from” the private contractor.[17]  The school district claimed that it didn’t “even have a list of the drivers. It’s their company and their employees.”[18]

Finally, “[r]ecords which are owned by a private person or entity and are not related to functions, activities, programs or operations funded by public funds”, although the law expressly states that this exception shall not apply to an “officer or employee of a public agency who is acting pursuant to the officer’s or employee’s official duties.”[19]

Nonprofit organization can also be subject to KORA.  “Each not-for-profit entity that receives public funds in an aggregated amount of $350 or more per year shall be required to document the receipt and expenditure of such funds.[20]   Generally, “each not-for-profit entity which receives public funds in an aggregated amount of $350 or more per year, shall, upon request, make available to any requester a copy of documentation of the receipt and expenditure of such public funds received by such not-for-profit entity.”[21]

Obtaining records under the KORA

There are a few procedural requirements a requester must meet in order to trigger agency response under the law.  Although a written request is not technically required by the law, the law allows each agency to require a written request if the agency so chooses, and as such, most do.[22]

Content of written request

The law provides that “[a] public agency shall not require that a request contain more information than the requester’s name and address and the information necessary to ascertain the records to which the requester desires access and the requester’s right of access to the records.”[23] A public agency may require the requester to demonstrate a “basis” for requesting the records under K.S.A. 45-220(c)(1), but such statement is required “only when access to the records sought is restricted to specific persons or specific uses.  For example, persons requesting access to lists of motor vehicle registrants would have to demonstrate that they are insurers or car manufacturers specifically authorized by statute to use the lists.”[24]  Thus, most agencies don’t usually require the requester to state an express “basis of right”.

In a nod to the public policy espoused in the law, “[n]o request shall be returned, delayed or denied because of any technicality unless it is impossible to determine the records to which the requester desires access.” K.S.A. 45-220(b).

In a nod to competing and equally legitimate privacy interests, the law allows the agency to whom the request is directed to “require that in order to process the request, the requester must indicate in writing that the requester will not: (A) Use any list of names or addresses contained in or derived from the records or information for the purpose of selling or offering for sale any property or service to any person listed or to any person who resides at any address listed; or (B) sell, give or otherwise make available to any person any list of names or addresses contained in or derived from the records or information for the purpose of allowing that person to sell or offer for sale any property or service to any person listed or to any person who resides at any address listed.[25]  Violators are subject to civil penalties.[26]

As for the content of a specific request, forms are available,[27] and one is included in these materials, but the requester must ultimately decide how to frame the specific request.[28]  No matter how the request is phrased, it must be a request for records, not information.  In other words, a request for “information about finances” does not describe a record that exists, and an agency is not required to create a record in response to a request.[29]  However, a KORA request for financial information will trigger an agency’s response requirement, if, for example, it seeks “records sufficient to identify expenses” for a given time period.

If it is essential to obtain all the records an agency has related to a particular topic, it may be necessary to request “any and all” document that fit the description.  But in light of applicable fee provisions, discussed infra, a better approach, as demonstrated in the hypothetical request for expense reports in the previous paragraph, may be to ask for “documents sufficient to identify” the subject matter.

No matter what, the request should include the following language: “If access to the requested record or records is not granted immediately, KORA requires you ’to give a detailed explanation of the cause for further delay and the place and earliest time and date that the record will be available for inspection.’”  Unless such language is delivered in writing, the agency has the option to refuse to explain the reason for why the request was denied under the statute.

Agency response

Now that the request has been submitted, how likely is the requester to get the information?  How long will it take?  And how much will it cost?

Consistent with the policy of openness, the burden of proving that an item is exempt from disclosure under the Kansas Open Records Act (KORA) is on the agency or the public entity opposing disclosure.[30] The exception to this rule is if the plaintiff is seeking criminal investigation records; under such circumstances, the plaintiff is required to prove that disclosure of the records is in the public interest.[31]  As such, in general, the agency is required to justify nondisclosure, both in connection with any responses, and in the event the requester files a complaint or lawsuit against the agency for failure to comply with KORA.

Time-frame for response

An agency must respond to the request within three days, and if it is unable to produce the record within three days, it “shall give a detailed explanation of the cause for further delay and the place and earliest time and date that the record will be available for inspection.”[32]  There are no express deadlines when any record shall be made available.

Costs may be assessed to requester

If the agency produces records, it “may require a written request and advance payment of the prescribed fee.”[33]  Such fee must be “reasonable” and related only to the “actual costs” associated with producing the records, but the agency is also permitted to charge for “staff time” spent responding to the request.[34]    While these provisions may sound reasonable on their face, over the years, agencies have tended to take the position that their costs for staff time are increasing and so they charge ever higher fees to records requesters. The agencies can continue raising fees, because KORA does not define cost of staff time in a limiting way. As the fees continue to go up, the public and the news media are “at the mercy of some public bodies that charge rates that are so outrageous that public records are closed by default because no one—including many of the newspapers in Kansas—can afford to pay.”[35]

Bases for nondisclosure

An agency may deny a request for many reasons, for example, if that the agency does not have the requested record in its possession, or if the request asks for copies of audio or video files.[36]

However, the major hurdle to access lies in the numerous exemptions available to public agencies as set forth in K.S.A. 45-221(a).  They give the public agency discretion to withhold disclosure of certain records depending on the nature or character of that record.[37]  Importantly, the KORA generally does not mandate nondisclosure, even of criminal investigation records; the decision whether to provide public record, even if it falls under one of the exemptions, is entirely the agency’s.

Ultimately, whether an agency discloses records in response to a KORA request often depends on whether the agency chooses to apply one of the 55 exemptions set forth in K.S.A. 45-221.  The first of these is particularly broad, because it allows an agency to choose not to disclose “[r]ecords the disclosure of which is specifically prohibited or restricted” by federal or state law.[38]  Thus, any provision in the Kansas statutes that references closure of records can become a basis under KORA for an agency’s basis of denial.  Further, federal laws, such as the Healthcare Information Portability and Accountability Act (HIPAA), serve as a basis not to disclose medical records, while the Family Educational Rights and Privacy Act (FERPA) protects student educational records from nondisclosure.

Exemptions of particular importance include the personnel records exemption, which excludes records related to job applicants and employees except for records containing “names, positions, salaries or actual compensation employment contracts or employment-related contracts or agreements and lengths of service of officers and employees of public agencies once they are employed as such.”

Another commonly employed exemption is the “personal privacy exemption,” which states that an agency can choose not disclose records that would reveal “information that would be highly offensive to a reasonable person, including information that may pose a risk to a person or property and is not of legitimate concern to the public.”[39]  The Kansas Supreme Court has found that social security numbers, dates of birth, and mother’s maiden name are “of a personal nature” and thus not subject to disclosure.[40]

But by far the most troubling of all the exemptions is K.S.A. 45-221(a)(10), which enables law enforcement agencies to exercise discretion to permanently deny public access to any records defined to be “criminal investigation records.”[41]  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.

Once the law enforcement agency decides not to disclose records it has determined to be a “criminal investigation record”, the records are thus “presumed to be closed to public scrutiny unless it can be shown that their release would not be harmful to some significant interest.”[42]  This “reverses the presumption implicit throughout the act—that records should be released, unless disclosure would be harmful to some private or public interest.”

If an agency is in possession of records that are responsive to the request, but the records also contain information subject to nondisclosure under K.S.A. 45-221, a “public agency shall separate or delete such material and make available to the requester that material in the public record which is subject to disclosure pursuant to this act.”[43]  Blanket closure of the record, simply because it contains information that may be subject to nondisclosure, is not permissible.

If the request is denied, as long as it included a written demand that the agency explain the basis of the denial, “the custodian shall provide, upon request, a written statement of the grounds for denial. Such statement shall cite the specific provision of law under which access is denied and shall be furnished to the requester not later than the end of the third business day following the date that the request for the statement is received. [44]

Enforcement

If a requester believes there is no legal basis to deny the record, the requester may file a complaint with either the county or district attorney in which the public agency is located, as any such agency has authority to file an action in district court to enforce the provisions of KORA.[45]  I am unaware of any instance where such an agency filed a KORA case on behalf of a citizen, and I can only imagine such a thing to be incredibly rare, but the Attorney General’s Office sought to fill the gap somewhat with additional enforcement powers effective as of July 1, 2015.[46]  Since then, that office has found seven agencies to be in violation of either the KORA or the Kansas Open Meetings Act (KOMA).[47]  Even so, the easiest way to try to enforce the KORA is probably to file a complaint with the Attorney General’s Office on its website.[48]

If a requester wants to assert more control over enforcement, he or she can file a lawsuit in district court.  Generally speaking, “the burden of proof shall be on the public agency to sustain its action.”[49]  However, the burden shifts to the requester if the subject of the request is criminal investigation records.  Once in court, a requester of “criminal investigation records” 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.[50]   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 requester 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.”[51]   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….’”[52]

Attorney fees

K.S.A. 45-222(d) provides that “the court shall award costs and a reasonable sum as an attorney’s fee for services rendered in such action, including proceedings on appeal, to be recovered and collected as part of the costs to the plaintiff if the court finds that the agency’s denial of access to the public record was not in good faith and without a reasonable basis in fact or law (emphasis added).”

Thus, even though the word “shall” appears, denoting a mandatory action by the court, the reality is that the private plaintiff will not recover attorney fees unless the agency’s denial was both “not in good faith” AND “without a reasonable basis in fact or law.”  The “not in good faith” provision is particularly troubling, because simple ignorance of the law seems to preclude an attorney fee award.  Moreover, the Kansas Supreme Court’s interpretation of K.S.A. 45-222(d) makes the “good faith” standard easy for agencies to meet, allowing an agency to argue that it acted in good faith so long as the “basis for withholding information has not been previously considered by state courts.”[53]

Finally, agencies are also permitted to ask the court to award fees on the same grounds under K.S.A. 45-45-222(e).  As such, plaintiffs have little financial incentive to file a KORA case in district court.

KORA: tips for defense counsel

Even though the KORA is not the strongest law on the books, it still compels action by governmental agencies in the form of responding to a request made under the law.  There may be times when forcing the government’s hand is useful, either for investigative purposes or to verify that the prosecution has complied with its discovery obligations.

Here are a few examples of how a defense attorney might use the KROA to better represent a client.

Body camera footage of a client

Although the prosecution would certainly be obligated under discovery rules to disclose any body or vehicle camera footage related to a defendant’s case, this provision in the KORA could act as a backstop to force disclosure of the footage if necessary.  While this is ordinarily a potential boon for defense counsel, as it forces law enforcement to provide footage under KORA as well as applicable discovery procedures, access to mobile police video comes with risk as well.

Body camera and vehicle camera footage is unique under KORA because even though such footage is defined under KORA to be “criminal investigation records”,[54] the audio and video captured by those devices is available to the “subject” of the video, or, if the subject is deceased, the subject’s “heir at law.”[55] Moreover, one of the persons to whom access can be granted is “an attorney” for the subject or the subject’s family, so depending on the relationship with the defendant and/or the defendant’s family, defense counsel could be the first member of the public to see body camera footage containing a client.[56]

On the other hand, the subject of the video, or the subject’s “heir at law”, has no obligation to allow defense counsel to access the video.  Moreover, the subject has a right to disseminate the footage to whoever they choose, including the media.

Finally, the legislature is considering an amendment that would require disclosure of such footage in 20 days of a request.[57]

Attorney/client communication about how to handle such footage, and whether it should be disseminated to the media, is essential to minimize the potential that defense counsel will wake up one morning only to see a client’s footage on the news.

Records related to witnesses and codefendants

Defense counsel may also find success using KORA to learn information about trial participants that are employed by public agencies, namely police officers, which may help defense counsel impeach a witness’s credibility.

Unfortunately, records defined as “criminal investigation records” that might best show a pattern of unreasonable or unconstitutional conduct are not likely to be disclosed.  However, an agency is required to disclose personnel records that indicate “salaries or actual compensation employment contracts or employment-related contracts or agreements and lengths of service of officers and employees of public agencies.”[58]  A request for such records related to a law enforcement witness from the date that witness was hired at the law enforcement agency might reveal whether the officer was being paid when that officer was on administrative leave.  If such information is revealed, it may be a basis for further inquiry about whether the officer’s conduct on the job resulted in a negative employment impact.

However, the best way to attempt to secure records related to law enforcement misconduct is to direct a request to the Kansas Commission on Peace Officers’ Standards and Training (KSCPOST) for “Notice of Termination or Status Change” forms related to a particular officer.[59]  Those forms show whether an officer was terminated under questionable circumstances, and depending on what information is redacted, may show the reason the officer was terminated.

Access to such records may be restricted after July 1, 2018, if HB 2625 becomes law.

If witnesses have been involved in civil litigation or a criminal matter, information related to such actions may be relevant to credibility.  Many times, KORA isn’t even necessary; a Google search or use of the federal PACER system are good first steps.  But in the event defense counsel learns information suggesting that a witness may have been involved in a litigation or a criminal action in a Kansas jurisdiction where such information is not readily available online, a KORA request is the mechanism for accessing such information.

Agency policies and procedures

There may be times when an agency’s policy is relevant to establish or attack credibility.  While such information is often available during discovery, it may be beneficial to make a KORA request anyway, either to get the information promptly, or to verify the information disclosed during discovery.  Making a KORA request for a law enforcement agency’s use of force policy, for example, could help focus defense counsel’s investigation around the reasonableness of officer conduct early on in the case.  Another potentially helpful records might be the “evaluation form” related to the witness’s conduct while on the job.  Although the agency would almost certainly deny access to an evaluation form containing individually identifiable information about anyone, it may be helpful to know how the employee is evaluated, or whether the employer evaluates its law enforcement employees at all.

Ultimately, defense counsel should keep in mind that if a witness or codefendant works or worked for a governmental agency, KORA could be a tool to expose information about that person that could help a client.

Managing pretrial publicity

Although “the Sixth Amendment does not demand juror ignorance”,[60] defense counsel has a right to control the dissemination of publicity, to the extent possible, to preserve the accused’s right to a fair trial.

Protective orders related to trial participants

In high-profile criminal matters, it may be advisable for defense counsel (and/or the prosecution) to move the court for a protective order on trial participants.  The legal bases for such a request are Rules 3.6 (Advocate: Trial Publicity) and 3.8 (Advocate: Special Responsibilities of a Prosecutor) of the Rules of Professional Conduct.  Pursuant to Rule 3.6(a), an attorney “who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.”  (emphasis added).[61]

Drawing from First Amendment jurisprudence,[62] Rule 3.6 does not prohibit all speech by an attorney involved in litigation; is merely prohibits speech that has a “substantial likelihood of materially prejudicing” the proceedings.  Moreover, the rule expressly provides for categories of speech that are not prohibited under the rule, such as “information contained in a public record” and “that an investigation of the matter is in progress.”[63]

The rule’s comments explain that the rule strikes a balance between “the right to a fair trial and safeguarding the right of free expression.”  On the one hand, the rule must allow for “some curtailment of the information that may be disseminated about a party prior to trial, particularly where trial by jury is involved.”[64]  However, that interest is balanced against “vital social interests served by the free dissemination of information about events having legal consequences and about legal proceedings themselves. The public has a right to know about threats to its safety and measures aimed at assuring its security. It also has a legitimate interest in the conduct of judicial proceedings, particularly in matters of general public concern. Furthermore, the subject matter of legal proceedings is often of direct significance in debate and deliberation over questions of public policy.”[65]

Moreover, in addition to the requirements of Rule 3.6, prosecutors have responsibilities under Rule 3.8 that extend to refraining “from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused.”[66]  Further, prosecutors are required to “exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6 or this Rule.

Thus, any protective order seeking to limit the speech of trial participants must comport with the balance set forth in Rule 3.6, while recognizing that under Rule 3.8, prosecutors and other agents of the state, including law enforcement, are also subject to the provisions of Rule 3.6.  In other words, a constitutionally permissible protective order aimed at the attorneys and law enforcement essentially tracks the applicable rules.

A good example of a constitutionally permissible protective order from a high-profile case in Reno County from 2011 is attached, as is the full text of Rules 3.6 and 3.8.

Protective orders related to the media

Depending on the intensity of media coverage, defense counsel may have an urge to move for a protective order aimed at the press.  However, such an order faces a much higher hurdle than one aimed at trial participants.  Gag orders on the press are valid only if: (1) there exists intense and pervasive publicity; (2) no other alternative measure might mitigate the effects of the pretrial publicity, including voire dire; change of venue; continuance; admonition; sequestration and (3) the protective order will be effective in preventing prejudicial publicity from reaching the jurors.[67]  In light of social media accessibility, a movant faces a high hurdle to show that any such “gag order” would have the actual effect intended.

Probable cause affidavits

In 2014, the legislature passed amendments to K.S.A. 22-2302 and K.S.A. 22-2502, granting limited public access to probable cause affidavits filed in criminal cases.  Those amendments include provisions for defense counsel to oppose the release of those affidavits.  Before exploring the technical aspects of the law, the historical availability of probable cause affidavits is instructive.

Historical context [68]

Before 1979, probable cause information was more or less freely available to courthouse reporters for newspapers.   However, in that year, the Legislature amended the statutes that governed access to probable cause affidavits.  The amended statues provided that the probable cause information was not “made available for examination without a written order of the court” to anyone other than a criminal defendant.   The statutory amendments presumptively precluded anyone from obtaining affidavits other than the defendant in the criminal case to which the arrest or search was related.  Their enactment followed a controversy involving a murder case in Douglas County that the Topeka Daily Capital was covering.  A reporter for that newspaper “obtained the names of the two persons for whom warrants were issued by going into the office of the clerk of the district court.  The criminal appearance docket was on a table in the back of the room. The room was divided by a counter and a swinging gate. It was the general practice for reporters from the news media to go through the gate, proceed to the table where the criminal appearance docket was kept and look through its pages. It is a public document or record which is kept by the clerk of the district court.”  The paper published the names of two suspects in the murder case prior to their apprehension on the warrants.   Although one was tried and convicted, the other was never apprehended.

For disclosing the arrest warrants, the newspaper suffered a backlash, particularly from the law enforcement community. Stauffer Communications, Inc., owner of the Daily Capital, was convicted of violating a statute that prohibited disclosure of warrants before they were executed and returned, and the company appealed the conviction.  In the wake of that prosecution, a fateful development occurred in the form of a letter from the Sedgwick County District Attorney’s Office to the chairman of the Senate Judiciary Committee.   It called the committee’s attention to a ruling in Wilbanks v. State, 224 Kan. 66 (1978), in which the Kansas Supreme Court required the filing of probable cause information at the time a complaint was filed against a defendant.   The letter’s author was disappointed in the ruling because it “of course overrules 100 years of case law whereby, a verified complaint charging an offense which stems from the language of an [sic] statute was sufficient to support a warrant for arrest.”   Although the author claimed that his office would not “argue” with the new probable cause requirement, he claimed that he was aware of instances where “names of witnesses and victims have been published in the paper, and are available to friends of the defendant or defendant’s [sic] themselves prior to arrest.”

Like those who had criticized the Daily Capital for publicizing arrest warrants not yet executed, the author voiced concern related to dissemination of information about alleged perpetrators before they were apprehended.   However, the author did not simply propose preventing premature disclosure of probable cause affidavits.  Instead, he proposed that affidavits not be disclosed at all, except by written court order.    The wording of the author’s proposal was essentially the same as the legislative amendments that later in 1979 established a presumption of closure of affidavits regardless of whether they had been executed or not.

The amendments allowed the presumption of closure to be overcome only if one who requested an affidavit could convince a judge that its disclosure would be in the public interest.   Because the 1979 amendments placed the burden on the requester to hire counsel and go before a judge to even have a chance to obtain it, probable cause affidavits were effectively sealed from public view for 35 years.

Procedure

As of July 1, 2014, under K.S.A. 22-2302(c), “Any person”, but usually a member of the news media, “may request that affidavits or sworn testimony be disclosed by filing such request with the clerk of the court.”[69]   Also in 2014, K.S.A. 22-2502 was also amended to allow “any person” to make requests search warrants executed in connection with a criminal investigation.[70]

Once a request for a probable cause affidavit in support of an arrest has been filed, it is the clerk’s job to notify the parties.[71]  However, such notice cannot be delivered unless an attorney has entered their appearance for the defendant, or the defendant has indicated “to the court that such defendant will represent the defendant’s self.”[72]  Note that the requirement that the defendant have counsel or indicate pro se representation is not required if the request is for a search warrant.[73]

Once defense counsel has received notice of the request, defense counsel has five days “to submit to the magistrate, under seal, either: (A) Proposed redactions, if any, to the affidavits or sworn testimony and the reasons supporting such proposed redactions; or (B) a motion to seal the affidavits or sworn testimony and the reasons supporting such proposed seal.”[74]  The prosecution has the same opportunity.

No later than 10 days after notice of the request has been delivered to the parties, the court “shall either: (A) Order disclosure of the affidavits or sworn testimony with appropriate redactions, if any; or (B) order the affidavits or sworn testimony sealed and not subject to public disclosure.”[75]  Whether or not material is redacted or disclosed depends on whether “public disclosure of information that would:

(A) Jeopardize the physical, mental or emotional safety or well-being of a victim, witness, confidential source or undercover agent, or cause the destruction of evidence;

(B) reveal information obtained from a court-ordered wiretap or from a search warrant for a tracking device that has not expired;

(C) interfere with any prospective law enforcement action, criminal investigation or prosecution;

(D) reveal the identity of any confidential source or undercover agent;

(E) reveal confidential investigative techniques or procedures not known to the general public;

(F) endanger the life or physical safety of any person;

(G) reveal the name, address, telephone number or any other information which specifically and individually identifies the victim of any sexual offense described in article 35 of chapter 21 of the Kansas Statutes Annotated, prior to their repeal, or article 55 of chapter 21 of the Kansas Statutes Annotated or K.S.A. 2017 Supp. 21-6419 through 21-6422, and amendments thereto;

(H) reveal the name of any minor;

(I) reveal any date of birth, personal or business telephone number, driver’s license number, nondriver’s identification number, social security number, employee identification number, taxpayer identification number, vehicle identification number or financial account information; or

(J) constitute a clearly unwarranted invasion of personal privacy. As used in this subparagraph, “clearly unwarranted invasion of personal privacy” means revealing information that would be highly offensive to a reasonable person and is totally unrelated to the alleged crime that resulted in the issuance of the arrest warrant, including information totally unrelated to the alleged crime that may pose a risk to a person or property and is not of legitimate concern to the public. The provisions of this subparagraph shall only be used to redact and shall not be used to seal affidavits or sworn testimony.[76]

Motions to change venue

As a practical matter, a motion to change venue is the most likely alternative available to defense counsel in the face of intense publicity about a client.  However, such motion faces a complex legal standard.  Moreover, “[e]xtensive pretrial media coverage of a crime alone has never established prejudice per se”,[77] and 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.[78]

In Kansas, “evaluating whether the level of prejudice warrants a venue change under the statute by examining nine factors.”[79]  Those factors are “[1] the particular degree to which the publicity circulated throughout the community; [2] the degree to which the publicity or that of a like nature circulated to other areas to which venue could be changed; [3] the length of time which elapsed from the dissemination of the publicity to the date of trial; [4] the care exercised and the ease encountered in the selection of the jury; [5] the familiarity with the publicity complained of and its resultant effects, if any, upon the prospective jurors or the trial jurors; [6] the challenges exercised by the defendant in the selection of the jury, both peremptory and for cause; [7] the connection of government officials with the release of the publicity; [8] the severity of the offense charged; and [9] the particular size of the area from which the venire is drawn.”[80]

In high profile cases such as State v. Carr, defense counsel could attempt to establish juror bias by hiring a litigation consulting firm to poll potential jurors.[81]  Counsel could also consider issuing a subpoena for nonparty business records under K.S.A. 60-245a to local news organizations in an attempt to establish the degree and nature of media coverage.  An example of such subpoena is attached.  Like any subpoena issued under this provision, “[t]he person to whom the subpoena is directed may demand the reasonable costs of copying the records. If the costs are demanded, the records need not be produced until the costs are advanced.”[82]

Conclusion

Hopefully, the foregoing encourages defense counsel to utilize open government laws and concepts to supplement traditional investigation methods and otherwise protect criminal defense clients.  I thank the KACDL for the opportunity to present on this topic.

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] Kansas Bill of Rights, Sec. 2

[2] See, e.g., Wichita Eagle Beacon Co. v. Owens, 271 Kan. 710, Syl. 2 (”Consistent with the rule of Kansas City Star Co. v. Fossey, 230 Kan. 240, Syl. ¶ 2, 630 P.2d 1176 (1981), the news media, as a member of the public…”).

[3] Ted Frederickson, Letting the Sunshine In, 33 Kan. L. Rev. 205, 206 (Winter 1985).

[4] K.S.A. 45-218(a)

[5] Frederickson, 33 Kan. L. Rev. 206, FN 8.

[6] K.S.A. 45-218(a).

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

[8] But see, e.g., Salina Journal, et al., v. Brownback, et al., Kansas Court of Appeals No. 115,194, HN. 7 (2017), citing Eveleigh v. Conness, 261 Kan. 970, 977-78, 933 P.2d 675 (1997) (Liberal construction should only be “called into use where there is ambiguity in the language of the statute, or, in other words, where there are one or more interpretations which may fairly be made.”

[9] K.S.A. 45-217(g)(1)((A) and (B)

[10] See Kautsch, Maxwell E.  AG’s proposed amendment to KORA would have covered budget director’s emails.  (May 7, 2015).  Retrieved from http://kautschlaw.com/2015/05/07/ags-proposed-fix-to-kora-would-have-covered-budget-directors-emails/, February 27, 2018.

[11] Legislative hearing testimony by Derek Schmidt, Attorney General, State of Kansas, p. 3 (February 2, 2016), 2016 SB 361.  Retrieved from http://kslegislature.org/li_2016/b2015_16/committees/ctte_h_jud_1/documents/testimony/20160309_08.pdf, February 27, 2018.

[12] Frederickson, 33 Kan. L. Rev. 221.

[13] K.S.A. 45-217(f)(1)

[14] K.S.A. 45-218(f)(2)(B)

[15] K.S.A. 45-218(f)(2)(A)

[16] Frederickson, 33 Kan. L. Rev. at 216.

[17] Wingerter, Justin, and Llopis-Jepsen, Calia.  USD 501, Durham mum on bus driver accused of child pornography.  The Topeka Capital-Journal (May 4, 2015).

[18] Id.

[19] K.S.A. 45-217(g)(3)(A)

[20] K.S.A. 45-240(a)

[21] Id.

[22] K.S.A. 45-219(a).

[23] K.S.A. 45-220(b); K.S.A. 45-220(c)(“A public agency may require proof of identity of any person requesting access to a public record.”)

[24] Frederickson, 33 Kan. L. Rev. at 233 (emphasis in original).

[25] K.S.A. 45-220(c)(2).

[26] See K.S.A. 45-230.

[27] See Kautsch, Maxwell E.  Fresh Tips: Sample Request for Records.  (August 8, 2017).  Retrieved from http://kautschlaw.com/2017/08/08/fresh-tips-sample-request-for-records-under-the-kansas-open-records-act/, February 27, 2018.

[28] See Kautsch, Maxwell E.  Fresh Tips: making requests under the Kansas Open Records Act.  (May 6, 2015).  Retrieved from http://kautschlaw.com/2015/05/06/fresh-tips-making-requests-under-the-kansas-open-records-act/, February 27, 2018.

[29] See Att’y Gen. Op. 1993-126.  Retrieved from http://ksag.washburnlaw.edu/opinions/1993/1993-126.htm, February 27, 2018.

[30] K.S.A. 45-222(c).  See also Telegram Pub. Co., Inc. v. Kansas Dept. of Transp., 275 Kan. 779, 69 P.3d 578 (2003); Wichita Eagle and Beacon Pub. Co., Inc. v. Simmons, 50 P.3d 66, 274 Kan. 194 (2002).

[31] Harris Enterprises, Inc., v. Moore, 241 Kan. 59 (1987).

[32] K.S.A. 45-218(d)

[33] K.S.A. 45-219(a)

[34] See K.S.A. 45-219(c)(1) and (2)

[35] Legislative hearing testimony by Doug Anstaett, Executive Director, Kansas Press Association (March 19, 2014), 2014 SB 10.  Retrieved from http://kslegislature.org/li_2014/b2013_14/committees/ctte_h_fed_st_1/documents/testimony/20140319_01.pdf,February 27, 2018.

[36] Under K.S.A. 45-219(a), although a public agency must allow access to view or listen to audio or video files, it is not required to provide copies.  That language has not been amended since its enactment in 1984.

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

[38] K.S.A. 45-221(a)(1)

[39] K.S.A. 45-221(a)(30); K.S.A. 45-217(b)

[40] Data Tree v. Meek, 279 Kan. 445, 462 (2005).  However, the Court’s ruling expressly applied only to the “specific facts of the case”, which involved a company “engaged in the business of collecting and providing real estate information and, in the course of such business, gathers and disseminates facts obtained from public records to its clients. Data Tree’s business is conducted in part by purchasing copies of public records maintained by various register of deeds’ offices in the State of Kansas.”  Data Tree, 279 Kan. at 447; 462.   See also

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

[42] See K.S.A. 45-221(a)(10)(A)-(F); Frederickson, 33 Kan. L. Rev. at 245 (emphasis in original).

[43] K.S.A. 45-221(d)

[44] K.S.A. 45-218(d)

[45] See K.S.A. 45-222(a)

[46] K.S.A. 45-251

[47] Open Government.  Enforcement Actions.  Kansas Attorney General’s Office.  Retrieved from https://ag.ks.gov/open-government/enforcement-actions, February 27, 2018.

[48] KOMA/KORA Complaint Form.  Kansas Attorney General’s Office.  Retrieved from https://ag.ks.gov/file-a-complaint/koma-kora-investigation-request, February 27, 2018.

[49] K.S.A. 45-222(c)

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

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

[52] Id., 66-67

[53] Hull, Katrina G. DISAPPEARING FEE AWARDS AND CIVIL ENFORCEMENT OF PUBLIC RECORDS LAWS, 52 U. Kan. L. Rev. 721, 745 (2004); see also Telegram Pub. Co., Inc. v. Kansas Dept. of Transp., 275 Kan. 779 (2003).

[54] K.S.A. 45-217(c); K.S.A. 45-254(a)

[55] K.S.A. 45-254(b) and (c)

[56] K.S.A. 45-254(c)(3)

[57] 2018 HB 2571, as amended by House Judiciary Committee.  Retrieved from http://kslegislature.org/li/b2017_18/measures/hb2571/, February 27, 2018.

[58] K.S.A. 45-221(a)(4)

[59] Eyewitness News Wins National Murrow Award, KWCH12 news release (June 20, 2017), http://www.kwch.com/content/news/Eyewitness-News-Wins-National-Murrow-Award-429692163.html.

[60] State v. Carr, 300 Kan. 1, 65, 66 (2014)(reversed on other grounds), citing Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961) (“[S]carcely any of those best qualified to serve as jurors will not have formed some impression or opinion as to the merits of the case.” Irvin, 366 U.S. at 722, 81 S.Ct. 1639.

[61] Kansas Rules of Professional Conduct (KRPC) 3.6(a)

[62] See, e.g., Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 573 (1980) (plurality opinion) (“a presumption of openness inheres in the very nature of a criminal trial under our system of justice.”); Press-Enterprise Co. v. Superior Court (Press-Enterprise II), 478 U.S. 1, 8 (1986)( When considering whether a constitutional presumption of access applies to particular proceedings or records, courts apply the “logic and experience test,” which considers “whether the place and process have historically been open to the press and general public,” and “whether public access plays a significant positive role in the functioning of the particular process in question.”).  See also The First Amendment presumption of access, Reporter’s Committee for Freedom of the Press.  Retrieved from https://www.rcfp.org/master-open-courts-compendium/first-amendment-presumption-access.

[63] See, e.g., KRPC 3.6(b)(2) and (3)

[64] KRPC 3.6, comment 1

[65] Id.

[66] KRPC 3.8(f)

[67] See Nebraska Press Ass’n v. Stuart, 427 US 539 (1976)

[68] Excerpted from Max Kautsch and Mike Kautsch, Probable Cause Affidavits Open in Kansas, Journal of the Kansas Bar Association (May, 2015),

[69] See K.S.A. 22-2302(c)

[70] K.S.A. 22-2502(e)

[71] K.S.A. 22-2302(c)(2)

[72] Id.

[73] K.S.A. 22-2502(e)(2)(“The clerk of the court shall promptly notify the defendant or the defendant’s counsel…”)

[74] K.S.A. 22-2302(c)(3); K.S.A. 22-2502(e)(3)

[75] K.S.A. 22-2302(c)(5); K.S.A. 22-2502(e)(5)

[76] K.S.A. 22-2302(c)(4)(A)-(J); K.S.A. 22-2502(e)(4)(A)-(J)

[77] State v. Dunn, 243 Kan. 414, 424, 758 P.2d 718 (1988) (citing State v. Ruebke, 240 Kan. 493, 500, 731 P.2d 842 [1987]; State v. Porter, 223 Kan. 114, 117, 574 P.2d 187 [1977] ).  See also State v. Roeder, 300 Kan. 901 (2014), citing State v. Verge, 272 Kan. 501, 508 (2001)(“media publicity alone never establishes prejudice.” (Emphasis added.))

[78] In State v. Lumbrera, the defendant was granted a new trial based on cumulative errors, one of which was the failure to change venue due to pretrial publicity.  She was convicted again on retrial.  State v. Lumbrera, 257 Kan. 144 (1995).

[79] State v. Carr, 1 Kan. at 81, citing State v. McBroom, 299 Kan. 731 (2014).

[80] Id, citing State v. Higgenbotham, 271 Kan. 582, 592, 23 P.3d 874 (2001) (citing State v. Jackson, 262 Kan. 119, 129, 936 P.2d 761 [1997] ).  Kansas courts have never reversed a conviction based solely on pretrial publicity.

[81] See, e.g., State v. Carr, 1 Kan. at 49

[82] K.S.A. 60-245a(b)(4)