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A GUIDE TO THE KANSAS OPEN
RECORDS ACT FOR LAW
ENFORCEMENTK.S.A. 45-215 et seq.
Philip R. Michael
Assistant Attorney General
LOGIC Division
KORA issues/concerns
• Calculation and explanation of the “reasonable”
fee/actual costs
• Records provided did not meet requester’s
expectations
• Requester believes there should be existing public
records, but none are found
• Is agency/entity covered by KORA, and if not, why not?
• Failure to respond within 3 business days
• Failure to provide the requested records
• Access to criminal investigation records
• Application of exemptions to disclosure and redaction
Policy, construction, purpose
• “Public records shall be open for inspection by
any person unless otherwise provided, and this
act shall be liberally construed and applied to
promote such policy” – K.S.A. 45-216(a)
• KORA enacted in 1984; it replaced version
enacted in 1957
• KORA provides the procedure for the public to
view and make copies of public records
• KORA also defines and categorizes records
What is a “public agency?”
• The state
• Any political or taxing subdivision of the
state, or any office, agency or
instrumentality thereof, or
• Any other entity receiving or expending or
supported in whole or in part by public
funds appropriated by the state or
political/taxing subdivisionK.S.A. 2018 Supp. 45-217(f)(1)
What is not a “public agency?”
• Private companies solely because
they receive payment from public
funds in exchange for property,
goods or services
• Municipal or state judge/justice
K.S.A. 2018 Supp. 45-217(f)(2)
Public record defined
• Any recorded information, regardless of form,
characteristics or location, which is made,
maintained or kept by or is in the possession of:
➢Any public agency
➢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
• Includes written records, photographs, computer
data, and emailK.S.A. 2018 Supp. 45-217(g)
Public record defined
• Does not include:
➢Records which are owned by a private person or entity
and are not related to functions, activities, programs or
operations funded by public funds➢Private person – does not include an officer or
employee of a public agency who is acting pursuant to
the officer’s or employee’s official duties
➢Records 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
➢Records not in existence at time of request
• Do not need to create records in order to fulfill a requestK.S.A. 2018 Supp. 45-217(g)
Applying KORA to a request
• KORA is, in part, a procedural
statute
• Best illustrated by reviewing the
sequence of actions that should
take place
KORA requirements for public agencies
• Appoint a Freedom of Information (FOI) officer to
assist with KORA requests
• Display, distribute or otherwise make available a
brochure describing requester rights, public agency
responsibilities and procedures for inspecting or
obtaining copies of public records
• Include the name/title of records custodian, fees and
office hours available for anyone to make a request
K.S.A. 45-226 and K.S.A. 45-227
Who may make a request?
• Any person may make a request• The person need not be a resident➢Compare McBurney v. Young, US
Sup. Ct., April 2013 (Not a violation of privileges and immunities clause to limit access to public records to citizens of Commonwealth of Virginia)
Form of the request
• The public agency may require:
➢The request to be in writing
➢Only the requester’s name and address
➢Proof of identification
➢Written certification that the requester will not
use names and addresses obtained from the
records to solicit sales or services
• The person need not provide a reason for their
request
Rights of the requester
• Unless closed by law, the public has the right to
review all public records
• Any person may make abstracts or request copies
of records
• If copies cannot be made where the record is
located, arrangements must be made to allow
copying
• If portions of a record are closed, the remainder
must be made available to the requester
Limitations on requester’s rights
• Requester may not remove a public record without
the written consent of the custodian
• Public agency not required to make copies of radio
or recording tapes or discs, video tapes or films,
pictures, slides, graphics, illustrations unless shown
at a public meeting
• Copyrighted materials may not be reproduced
without the permission from the copyright holder, but
must be available for viewing or listening.
Responding to the request
• The request must be “acted upon” as soon as possible, but
not later than the end of the 3rd business day following date
request is received – K.S.A. 45-218(d)
• The three acceptable responses:
1. The record is provided (in the form requested, if
possible)
2. The request is under review and the records, if
permitted, will follow
3. The request is denied, with a detailed explanation
for the denial
Telegram Publishing Co., Inc. v. Kansas Department of
Transportation, 275 Kan. 779, ¶ 4 (2003)
Example
• Police department alleged to have failed
to timely respond to a KORA request➢ Request was for investigative reports regarding a shooting
death that had occurred
➢ Police department instructed clerks “not to fulfill the
request until advised to do so”
➢ Department responded almost two months after the
request had been filed
➢ Department alleged it was under the belief that the KORA
request was being covered by the district attorney’s office
Example
• Department waived their right to further adjudication and
waived any rights under the Kansas Judicial Review Act
• Terms included:
➢One hour of KORA training for all staff responsible for
KORA compliance
➢Written confirmation of such training submitted to the
Attorney General’s Office
➢Submit appropriate records to the requestor
➢Civil penalty of $100 payable to the Office of the
Attorney General
➢Not to engage in future KORA violations
Penalties
• Civil penalty up to $500 for each violation
• Require completion of AG approved
training
• Order to cease and desist from further
violation
• Comply with the KORA
• Reasonable expenses, investigative costs
and attorney fees
Allowable fees and charges
• Public agency may only recover actual
costs to provide the requested records
• These costs include staff time to
retrieve, review and redact information
from a record
• Fees may be estimated and collected
before the records are providedK.S.A. 45-218(f) and K.S.A. 2018 Supp. 45-219
Categorizing records
• Presumption of openness
• Requested public records must be released
unless an exemption to disclosure applies
• Burden rests on public agency to prove the
requested records are exempt from
disclosure
• Exemptions to disclosure – discretionary or
mandatory closure
Redaction
• If a record contains material that is not
subject to disclosure, the agency “shall
separate or delete such material” and
make the record available
• Identifiable individual
• Public agency can charge for staff time to
redact K.S.A. 2018 Supp. 45-221(d)
Mandatory closure of records
• There are records that are required to be closed by federal or state statute that are not found in KORA
• KORA will look to other statutes first –K.S.A. 2018 Supp. 45-221(a)(1)
• Records custodian must be familiar with those records and what must be separated into the open and closed portions of a record
Mandatory closure of records
Criminal history record information
• CHRI is data initiated or collected by a criminal justice
agency on a person pertaining to a reportable event and
any supporting documentation - K.S.A. 2018 Supp. 22-
4701(b)
• Criminal justice agency➢ Authorized to exercise power of arrest, detention,
prosecution, adjudication, correctional supervision,
rehabilitation or release of persons suspected, charged or
convicted of a crime, and
➢ Allocates a substantial portion of its budget
➢ K.S.A. 2018 Supp. 22-4701(c)
Mandatory closure of records
Criminal history record information
• Criminal justice agency includes:
➢State, county, municipal and railroad police
departments, sheriffs' offices and countywide law
enforcement agencies, correctional facilities, jails and
detention centers
➢Offices of the attorney general, county or district
attorneys and any other office in which are located
persons authorized by law to prosecute persons
accused of criminal offenses
➢District courts, court of appeals, supreme court,
municipal courts and offices of the clerks of these courts
Mandatory closure of records
Criminal history record information
• Reportable events
➢ Issuance of an arrest warrant
➢ Arrest
➢ Release after arrest without filing of a charge
➢ Filing of a charge
➢ Dismissal of indictment or criminal information
➢ Acquittal, conviction or other disposition
➢ Sentencing
➢ Commitment to correctional facility
➢ Release from detention or confinement
➢ Escape from confinement
➢ Pardon or other change in sentence
➢ Court judgment modifying or reversing lower court orders
Mandatory closure of records
Criminal history record information
• CHRI does not include:
➢ Data contained in intelligence or investigatory files or police work-
product records used solely for police investigation purposes
➢ Wanted posters, police blotter entries, court records of public judicial
proceedings or published court opinions
➢ Data pertaining to violations of traffic laws other than vehicular homicide
➢ Presentence investigation and other reports prepared for use by a court
exercising criminal jurisdiction or the governor exercising power or
pardon, reprieve or commutation
➢ Information regarding the release, assignment to work release, or any
other change in custody status of a person confined by the department
of corrections or a jail
K.S.A. 2018 Supp. 22-4701(b)
Mandatory closure of records
Criminal history record information
• Except for requests for summary data, all KORA requests for records submitted to central repository repositories shall be directed to the criminal justice agency from which the records originated➢Criminal justice system central repository or any other
repositories supporting a criminal justice information system maintained by KBI
➢ Includes juvenile offender information system and asset seizure and forfeiture repository
K.S.A. 2018 Supp. 45-220(g)
Mandatory closure of records
Criminal history record information
• May not disseminate CHRI except as authorized by law
and regulation – K.S.A. 22-4707(a)
• Class A nonperson misdemeanor; if employed or licensed
by state/local government agency, conviction constitutes
good cause to terminate employment or revoke/suspend a
license – K.S.A. 22-4707(c)
• Criminal justice agency may disclose status of a pending
investigation of a named person or of a pending proceeding
if request for information is reasonably contemporaneous
with the event to which the information relates and
disclosure is otherwise appropriate – K.S.A. 22-4708
Mandatory closure of records
Criminal history record information
• Any person may inspect and challenge CHRI maintained by
a criminal justice (CJ) agency concerning themselves
• Person’s attorney may inspect such information if the
attorney satisfactorily establishes identity and presents a
written authorization from client
• Nothing requires CJ agency to make a copy of any
information or allow a person to remove a document to
copy it
• A person having right of inspection may make notes of the
information
K.S.A. 22-4709
Mandatory closure of records
Criminal history record information
• Dissemination of conviction records
➢ KBI is the sole agency releasing CHRI for non-criminal
justice purposes
➢ Other criminal justice agencies may provide to a non-
criminal justice agency or individual conviction information
that originated with that criminal justice agency only
➢ For both, request must include name, sex and DOB and
fee as determined by KBI director
➢ Criminal justice agency may obtain conviction information
from KBI for non-criminal justice purpose only if required
by municipal ordinance or county resolution for
governmental licensing or certification purposesK.A.R. 10-12-1
Mandatory closure of recordsJuvenile records
• All records of law enforcement officers
and agencies concerning an offense
committed or alleged to have been
committed by a juvenile under 14 years
old shall be kept readily distinguishable
from criminal and other records and not
be disclosed unless an exception applies
- K.S.A. 2018 Supp. 38-2310(a)
Mandatory closure of recordsJuvenile records
• The under 14 years of age rule does not apply to records
concerning:
➢ An offense for which the juvenile is prosecuted as an adult
➢ A violation of chapter 32 (wildlife, parks and recreation) by
a juvenile 16 more years of age
➢ A violation, by a person 14 or more years of age, of any
provision of chapter 8 (automobiles and other vehicles), or
of any city ordinance or county resolution which relates to
the regulation of traffic on the roads, highways or streets or
the operation of self-propelled or nonself-propelled
vehicles of any kindK.S.A. 2018 Supp. 38-2310(b)
Mandatory closure of records
Miscellaneous records
• Presentence investigation reports
➢Part of the court record and open to public
➢The official version, defendant’s version, victim’s
statement, psychological reports, risk and needs
assessment, and drug and alcohol reports and
assessments are not open to the public and are
accessible only to the parties, the sentencing
judge, the department of corrections and, if
requested, the Kansas sentencing commissionK.S.A. 2018 Supp. 21-6813(c)
Mandatory closure of records
Search and arrest warrants
Accessing warrants
executed before July 1, 2014
• Affidavits or sworn testimony given to
support probable cause to obtain warrant
are closed without a written court order
• Exception - the defendant or defendant’s
counsel may have a copyK.S.A. 2018 Supp. 22-2302(b) (arrests)
K.S.A. 2018 Supp. 22-2502(d) (searches)
Mandatory closure of records
Search and arrest warrants
Accessing warrants
executed on or after July 1, 2014• Affidavits or sworn testimony given to support
probable cause to obtain warrant are closed until
warrant is executed
• After execution, affidavit or sworn testimony shall be
made available to:
➢Defendant or defendant’s counsel upon request,
and
➢Any person when requested K.S.A. 2018 Supp. 22-2302(c) (arrests)
K.S.A. 2018 Supp. 22-2502(e) (searches)
Mandatory closure of records
Search and arrest warrants
Accessing warrants
executed on or after July 1, 2014• Must file request with Clerk of the Court
• Clerk must “promptly notify” defendant or
defendant’s counsel, the prosecutor, and the
magistrate that such request was filed
• Prosecutor shall promptly notify any victim➢Victim includes victim of any alleged crime that
resulted in issuance of warrant OR
➢Victim’s family if victim is deceased➢Family defined in K.S.A. 74-7335
Mandatory closure of records
Search and arrest warrants
Grounds for magistrate to redact
or seal affidavit(s) or sworn testimony• Jeopardize physical, mental or emotional safety / well
being of victim, witness, confidential source or
undercover agent or cause destruction of evidence
• Reveal information from wiretap or unexpired warrant for
a tracking device
• Interfere with any prospective law enforcement action,
criminal investigation or prosecution
• Reveal identity of any confidential source or undercover
agent
• Reveal confidential investigative techniques or
procedures not known to general public
• Endanger life / physical safety of any person
Mandatory closure of records
Search and arrest warrants
Grounds for magistrate
to redact or seal affidavit(s) or sworn testimony• Reveal identifying information of victim of any sexual
offense
• Reveal name of minor
• Reveal DOB, phone numbers, DL#, ID#,SSN, EIN, taxpayer ID #, VIN or financial account information
• Constitute clearly unwarranted invasion of personal privacy➢ Revealing information that is highly offensive to a reasonable
person AND
➢ Is 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
Mandatory closure of records
Search and arrest warrants
Disclosure of warrants
executed on or after July 1, 2014• Judge orders disclosure with redactions –
affidavit/sworn testimony part of court record that
is accessible to the public
• Judge seals – affidavit/sworn testimony part of
court record that is not accessible to the public
• Any request for disclosure of affidavit/sworn
testimony is part of court record and is accessible
to the public
Mandatory closure of records
Search and arrest warrants
• Criminal disclosure of an arrest or search warrant –
recklessly making public aware: ➢ That warrant applied for or issued
➢ Content of affidavit or testimony supporting warrant
➢ Penalty - class B non-person misdemeanor
• LEO can disclose arrest or search warrant: ➢ To gain assistance in executing warrant
➢ To encourage the person named in the warrant to voluntarily
surrender
➢ Where warrant is issued in a case involving the abduction of a
child unless such disclosure is specifically prohibited by court
issuing the warrant
K.S.A. 2018 Supp. 21-5906
Mandatory closure of records
Recording of certain interrogations
• LEAs must adopt detailed written policy requiring
electronic recording of entire custodial interrogation at a
place of detention when:➢ Custodial interrogation involves a homicide or felony sex offense
➢ Defendant elects to make or sign a written statement during the
course of such a custodial interrogation
• Must collaborate with county or district attorney
• Adopt policy prior to July 1, 2018
• Policy must be available for public inspection during
normal business hours
K.S.A. 2018 Supp. 22-4620(a), (b), (c)
Mandatory closure of records
Juror list
• List of prospective jurors are filed
with clerk of the court and are a
public record
• Addresses of prospective jurors
are no longer included in list
K.S.A. 2018 Supp. 22-3408
Mandatory closure of records
Care and treatment proceedings
• Appearance docket for proceedings regarding the
care and treatment act for mentally ill persons are
confidential - K.S.A. 2018 Supp. 59-212
• District court records, and any treatment records or
medical records of any patient or former patient in
the possession of any district court or treatment
facility are privileged and shall not be disclosed -
K.S.A. 2018 Supp. 59-29b79(a)➢Willful violation is a class C misdemeanor
Mandatory closure of records
Care and treatment proceedings
• Release of district court/treatment facility records➢ May release with written consent of patient/former patient, legal
guardian, parent if patient/former patient under 18, but
patient/former patient over 14 and who was voluntarily admitted
on their own application may release without parental consent
➢ Head of treatment facility may refuse to disclose portions of
records if injurious to welfare of patient/former patient
➢ Court order
➢ KBI only to determine eligibility to purchase and possess
firearms or qualifications for license pursuant to the personal and
family protection act
K.S.A. 2018 Supp. 59-29b79
Mandatory closure of records
Infectious/contagious disease
May disclose reports if:
• No identifiable information and disclosure is for statistical
purposes
• Identifiable persons consent in writing
• Necessary to protect public health
• Medical emergency and disclosure is to qualified medical
personnel to protect the health or life of a named party to treat
infectious or contagious disease
• There is a court proceeding involving child abuse and
disclosure is to court in camera
K.S.A. 2018 Supp. 65-118(c)
Mandatory closure of records
Racing Commission records
• Racing Commission may receive records from criminal
justice agencies
➢Criminal history record information
➢Criminal intelligence information
➢ Information relating to criminal and background
investigations
• Unlawful disclosure of records is a class A misdemeanor
and grounds for removal from office, termination of
employment or denial/suspension/revocation of any
license issued under act
K.S.A. 2018 Supp. 74-8804(o)
Mandatory closure of records
Motor vehicle records
• All motor vehicle records are subject to the KORA
except as provided
• Photographs or digital images maintained in
connection with the issuance of drivers’ licenses➢ Shall be confidential
➢ Shall not be disclosed without court order
➢ May be disclosed to any federal, state or local law
enforcement agency to assist the agency in carrying out its
functions
K.S.A. 2018 Supp. 74-2012(b); See also Driver’s Privacy
Protection Act, 18 USC § 2721 et seq.
Mandatory closure of records
Motor vehicle records
Driver’s Privacy Protection Act
18 USC § 2721 et seq.
• State department of motor vehicles shall not
knowingly disclose or make available to any
person or entity:➢Personal information obtained in connection with a
motor vehicle record
➢Highly restricted personal information obtained in
connection with a motor vehicle records without
express consent of the person
18 USC § 2721
Mandatory closure of records
Central registry
• Purpose of registry – resource for all agencies that appoint or elect LEOs to use when reviewing employment applications
• Includes:➢ All records received or created by CPOST pursuant
to K.S.A. 2018 Supp. 74-5611a, as amended➢All records related to violations of the Kansas law
enforcement training act including, but not limited to, records of complaints received or maintained by CPOST
K.S.A. 2018 Supp. 74-5611a(a)(2)
Mandatory Closure of Records
Central registry
• General rule – All records contained in the
registry are confidential and shall not be
disclosed pursuant to the KORA
• Exceptions➢Kansas administrative procedure act (KAPA)
➢Specific individuals or entities
➢Any personK.S.A. 2018 Supp. 74-5611a(a)(3)
Mandatory Closure of Records
Central registry
• Records contained in the registry, other than investigative
files, shall be disclosed:➢ To an agency that certifies, appoints or elects police or LEOs
➢ To the person who is the subject of the information
➢ In any proceeding conducted by CPOST in accordance with the
KAPA, or in an appeal of a CPOST order, or to a party to a
proceeding or that party’s attorney
➢ To a municipal, state or federal licensing, regulatory or enforcement
agency with jurisdiction over acts or conduct similar to acts or
conduct that would constitute ground for action under the Kansas
law enforcement training act
➢ To the director of police training when such disclosure is relevant to
the authority granted in K.S.A. 74-5604a(b)
K.S.A. 2018 Supp. 74-5611a(a)(4)
Mandatory Closure of Records
Central registry
• The following records may be disclosed to any
person pursuant to the KORA➢ Statewide summary data without personally identifiable
information
➢ A record containing only the following related to a police or LEO:
➢Name
➢Current employer
➢Dates of employment with current employer
➢Name of previous law enforcement employers and dates of
employment
➢Summary of completed training as reported to CPOST
➢Status of certification
• Records subject to provisions of K.S.A. 45-221(a)K.S.A. 2018 Supp. 74-5611a(a)(5), (6)
Mandatory Closure of Records
Hiring and employment records
• Hiring practices and consideration of prior employment records
• Files➢ Performance reviews, files related to job performance,
commendations, administrative files, grievances, previous personnel applications, personnel-related claims, disciplinary actions, internal investigation files, suspensions, investigation-related leave, documents on termination or other departure from employment, all complaints, and all early warning information
➢ Does not include nonperformance documents or data including, but not limited to, medical files, schedules pay and benefit information or similar administrative data or information
• Government agency – state or subdivision with oversight over a state or local law enforcement agency
K.S.A. 2018 Supp. 75-4379(g)
Mandatory Closure of Records
Asset seizure and forfeiture
• Kansas Bureau of Investigation (KBI) shall establish the Kansas asset seizure and forfeiture repository on or before July 1, 2019
• KBI responds to requests for records for summary data
• Requests for records other than summary data shall be directed to the law enforcement agency from which the records originated
K.S.A. 2018 Supp. 45-220(h); K.S.A. 2018 Supp. 60-4127(a)
Policy Reasons Records May Be
Discretionarily Closed
• Personal privacy
• Safety/security
• Internal communications while
policies are developed or
administrative procedures are
underway
Discretionary closure – personal privacy
• Medical, psychiatric, psychological or alcoholism/drug
dependency treatment records pertaining to identifiable patients
– K.S.A. 2018 Supp. 45-221(a)(3)
• Personnel records, performance ratings or individually
identifiable records pertaining to employees or applicants
EXCEPT exemption shall not apply to:
➢ Names of employees
➢ Positions/Titles
➢ Salaries or actual employment contracts, including
employment related contracts or agreements
➢ Length of service
➢ K.S.A. 2018 Supp. 45-221(a)(4)
Example
• KORA request for a blank copy of the evaluation
tool used by a city council to evaluate the job
performance of the city manager
• City declined to produce record
➢Created specifically to evaluate city manager
➢Personnel record
➢Only used and discussed in executive session to
negotiate a contract with city manager
• Violation of the KORA?
Example
• Yes, a KORA violation occurred➢Generic evaluative tool publicly available on
the internet is not exempt from disclosure
➢Assume that the city council used a
completed form to negotiate with the city
manager
➢A blank copy of the form is not exempt from
disclosure even if a completed copy of the
form was discussed during executive session
Example
• Penalty➢At least one hour of KORA training for all city
staff responsible for KORA compliance
➢Civil penalty - $250.00
➢Provide a copy of the record to the requester
➢Not engage in any further violations
Discretionary closure – personal privacy
• Clearly unwarranted invasion of personal privacy
• Definition - 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.
• Examples – Mother’s maiden name, DOB, street address, phone number
K.S.A. 2018 Supp. 45-221(a)(30)
Discretionary closure – personal privacy
• Records that would disclose the name, home address, email
address, phone/cell number, or other contact information for
concealed carry licensees, applicants or persons enrolled in or
who completed weapons training – K.S.A. 2018 Supp. 45-
221(a)(53)
• Records “shall not be disclosed unless otherwise required by
law”
• Records relating to persons issued licenses, applicants or
persons denied a license shall be confidential and cannot be
disclosed pursuant to KORA; disclosure a class A misdemeanor
– K.S.A. 2018 Supp. 75-7c06(b)
• Records of person whose license suspended or revoked subject
to public inspection under KORA – K.S.A. 2018 Supp. 75-7c06(c)
Discretionary closure – safety / security
• Records that would reveal the identity of an undercover agent or any informant reporting a specific violation of law – K.S.A. 2018 Supp. 45-221(a)(5)
• Records concerning emergency or security information or procedures of a public agency if disclosure would jeopardize the security of the public agency – K.S.A. 2018 Supp. 45-221(a)(12)
Discretionary closure – safety / security
• Plans, drawings, specifications or related information for any building or facility which is used for purposes requiring security measures in or around the building or facility or which is used for the generation or transmission of power, water, fuels or communications if disclosure would jeopardize the security of the public agency, building or facility
K.S.A. 2018 Supp. 45-221(a)(12)
Discretionary closure – safety / security
• Disclosure of records would pose a substantial
likelihood of revealing security measures that
protect:• Systems, facilities or equipment used in the
production, transmission or distribution of energy,
water or communications services
• Private property or persons if the records are
submitted to the agency
K.S.A. 2018 Supp. 45-221(a)(45)
Discretionary closure – safety / security
• Security - measures that protect against criminal acts
intended to intimidate or coerce the civilian population,
influence government by intimidation or coercion or to
affect the operation of government by disruption of public
services, influence government policy or affect the
operation of government
• Security measures include intelligence information,
tactical plans, resource deployment and vulnerability
assessments
K.S.A. 2018 Supp. 45-221(a)(45)
Discretionary closure – safety / security
• Information that would reveal the location of a safe house or shelter for abused persons or the name, address, location or the name, address, location or other contact information of alleged victims of stalking, domestic violence or sexual assault
K.S.A. 2018 Supp. 45-221(a)(47)
Discretionary closure – safety / security
• Records of a public agency on a public website which
are searchable by a keyword search and that identify the
home address or home ownership of a LEO or parole,
probation, court services or community correctional
services officers
• Individual officer shall file a request to restrict identifying
information from public access on the public website with
the custodian of records; must be restricted within 10
business days of receipt of request; restriction expires
after 5 years; officer may file new request for restriction
at any timeK.S.A. 2018 Supp. 45-221(a)(51)
Discretionary closure – safety/security
• Records of a public agency on a public website which are
searchable by a keyword search and that identify the home
address or home ownership of a federal judge, supreme court
justice, court of appeals judge, district judge, magistrate judge,
municipal judge, US attorney for Kansas, assistant US Attorney,
special assistant US attorney, AG, assistant AG, special assistant
AG, county/district attorney, assistant CA/DA, special assistant
CA/DA, city attorney, assistant city attorney or special assistant
city attorney
• Individual shall file a request to restrict identifying information from
public access on the public website with the custodian of records;
must be restricted within 10 business days of receipt of request;
restriction expires after 5 years; individual may file new request for
restriction at any timeK.S.A. 2018 Supp. 45-221(a)(52)
Discretionary closure – safety/security
• Home address of registered voter may be concealed from
public inspection on voter registration list and original
voter registration application form
• Request must be made in writing to county election officer
• Request shall specify a clearly unwarranted invasion of
personal privacy or a threat to the voter’s safety
• Upon receipt, county election officer will take appropriate
steps to ensure residence address is not publicly
disclosedK.S.A. 2018 Supp. 25-2309(i)
Discretionary closure –
safety/security
Criminal investigation records• Protects innocent persons whose names might be involved in
an investigation as suspects or informants
• Protects integrity of an on-going case and investigative
techniques
• Built in standard of review
• Definition
➢ Every audio or video recording made and retained by law
enforcement using a body camera or vehicle camera
➢ Records of investigatory agency or criminal justice agency
compiled in the process of preventing, detecting or
investigating violations of criminal law
K.S.A. 2018 Supp. 45-217(c); K.S.A. 2018 Supp. 45-221(a)(10);
K.S.A. 2018 Supp. 45-254(a)
Discretionary closure – safety/security
Criminal investigation records
• Following categories of people may request to
listen or view, and law enforcement agency shall
allow listening or viewing within 20 days after
making the request:➢ Subject of recording
➢ Parent/legal guardian of subject under 18 years of
age
➢ Heir at law of decedent who is subject of recording
➢ Attorney for a person described above
K.S.A. 2018 Supp. 45-254(b), (c)
Discretionary closure – safety/security
Criminal investigation records• What is a criminal investigation record?
➢ Standard arrest reports – K.S.A. 2018 Supp. 22-4701(b);
AGO 98-38
➢ Mugs shots – AGO 87-25
➢ Log of breath test machine results – AGO 87-63
➢ Records pertaining to vehicular homicides
➢ Coroner reports filed with the clerk of the district court
which are designated as a criminal investigation record –
K.S.A. 22a-232
➢ Records of death investigations may be closed even if the
death turns out to be from natural causes as long as there
was initially a criminal investigation
K.S.A. 2018 Supp. 45-217(c)
Discretionary closure – safety/security
Criminal Investigation Records• What is not a criminal investigation record?
➢ Police blotter entries
➢ Wanted posters
➢ Court records of public proceedings or published opinions
➢ Inmate rosters for jails/correctional/detention facilities
➢ Violations of any traffic law other than vehicular homicide
➢ Front page of Standard Offense Report but redact the
name/identifying information of the victims of sex offenses
and portions that constitute clearly unwarranted invasion of
privacy
➢ Custody time
Discretionary closure – safety/security
Criminal Investigation Records• (A) Is in the public interest; must be in the public interest – mere
curiosity is NOT enough
• (B) would not interfere with any prospective law enforcement action,
criminal investigation or prosecution;
• (C) would not reveal the identity of any confidential source or
undercover agent;
• (D) would not reveal confidential investigative techniques or
procedures not known to the general public;
• (E) would not endanger the life or physical safety of any person; and
• (F) would not reveal the name, address, phone number or any other
information which specifically and individually identifies the victim of
any sexual offense 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, and amendments thereto.
Discretionary closure – safety / security
Interference with judicial process
• Knowingly making available by any means personal information about a judge or the judge’s immediate family member if the dissemination of personal information:➢Poses an imminent and serious threat to the
judge’s safety or the safety of judge’s immediate family member, and
➢Person making information available knows or reasonably should know of the imminent and serious threat
K.S.A. 2018 Supp. 21-5905(a)(7)
Discretionary closure – internal
communications or procedures
• Records privileged under rules of evidence, unless
consent – K.S.A. 2018 Supp. 45-221(a)(2)
• Records of an investigation conducted under civil
litigation or administrative adjudication, if disclosure
interferes with the procedure – K.S.A. 2018 Supp.
45-221(a)(11)
• Correspondence between a public agency and a
private individual, unless intended to give notice of a
public agency action, policy or determination –
K.S.A. 2018 Supp. 45-221(a)(14)
Discretionary closure – internal
communications or procedures
• Notes, preliminary drafts, research data in the
process of analysis, unfunded grant proposals,
memoranda, recommendations or other records
in which opinions are expressed or policies or
actions are proposed except where such
records are publicly cited/identified in an open
meeting or in an agenda of an open meeting –
K.S.A. 2018 Supp. 45-221(a)(20)
• Attorney work product - K.S.A. 2018 Supp. 45-
221(a)(25)
LEGISLATIVE UPDATE
Legislative update
Criminal investigation records
• HB 2098 – amend K.S.A. 2018 45-221(a)(10)
• Public interest➢ Burden is on person seeking disclosure
➢ “Public interest is more than mere curiosity. It must be 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.” Harris Enterprises v Moore, 241 Kan. 59 (1987).
• Court weighs six factors in built in standard of review
including public interest
• Even if all six criteria are met, the court has the
discretion to close the records - Seck v. Overland Park,
29 Kan.App.2d 256 (2000)
Legislative update
Criminal investigation records
• HB 2098 – amend K.S.A. 2018 45-221(a)(10)
• The court may order disclosure if disclosure is in the public interest
and is not outweighed by the harm caused by:
➢ Interference with prospective law enforcement action,
criminal investigation or prosecution
➢ Release the identity of confidential source/undercover
agent
➢ Release confidential investigative techniques/procedures
not known to the general public
➢ Endanger the life/physical safety of any person
➢ Release of identifiable information about victim of sexual
offense
Resources
Resources
Questions?
Thank you!
Additional resources:
http://ag.ks.gov/
http://ag.ks.gov/open-govt/resources
http://ag.ks.gov/media-center/ag-opinions
http://ksag.washburnlaw.edu/
(Attorney General Opinions)