a guide to the kansas open records act for law ... - caak. kora criminal investigations... · data...

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


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)



• 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



• 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



• 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)



• 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)



• 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



• 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



• 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)


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)


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)



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)



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



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



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



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



• 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


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)


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


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


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


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)


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)


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.


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


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)


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)


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)


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)


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


• 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)


• 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)


• 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)


• 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)


• 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)


• 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)


• 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)


• 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)


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)


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)


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


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.


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


• 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


• 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

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)

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