Push is on to make police investigation records public; Leach family hopes to see son’s police file after 27 years
The more than 27-year-old case file on the disappearance of Randy Leach, a Linwood high school honor student, must be thousands of pages.
But it’s impossible to know because the Leavenworth County Sheriff’s Office and the Kansas Bureau of Investigation, who investigated the long-ago mystery, refuse to release the records even to Leach’s parents, Harold and Alberta Leach.
Law enforcement agencies are permitted to do that under the Kansas Open Records Act. The state’s police records disclosure law is unusual, and Kansas is one of the few states in the country that allows police to choose to keep all investigative records secret in perpetuity, even if there was a trial, or someone pleaded guilty, or the case is more than a generation old and there are no longer active leads.
The Leaches have long wondered if the detectives did enough when their son first disappeared and later as the investigation dwindled. Did detectives follow all the leads? Is there something that they may have missed?
“Over 27 years, there have been so many different tales and nothing was checked out totally,” Alberta Leach said. “So we don’t know if any of the stories are right or wrong. Letting us see the records might bring some light to something.”
Leavenworth County Sheriff Andy Dedeke did not respond to a request for an interview.
Bringing Kansas in line
The Leaches aren’t alone in their quest for records.
There have been several high profile cases in recent years where people had to go to court and spend tens of thousands of dollars to fight for police investigation files, including a family whose house was raided by sheriff’s deputies based on bad information and a woman who wanted to know why police shot her daughter.
Now help for the Leaches and others may be near.
A group of public records advocates are pushing for Kansas legislators to bring the Kansas Open Records Act regarding disclosure of police records more in line with open records laws of other states. They want to return the law to the way it worked in Kansas until the late 1970s when legislators, angry about a crime story, passed a law that closed police investigations and police reports, including probable cause affidavits.
“Imagine how awful it is for this family, that there is information out there, and there is nothing pending in the foreseeable future and they are prevented access,” said Max Kautsch, a Lawrence attorney who specializes in First Amendment rights and open government. He has represented the Lawrence Journal-World and other newspapers in several open records cases.
The Kansas Press Association, the Kansas Association of Broadcasters and the Kansas Sunshine Coalition for Open Government also are supporting changes in the police records law, Kautsch said.
Rep. John Rubin, a Shawnee Republican, said he will hold hearings at the Capitol, possibly in January or February, to receive input from the public, law enforcement and prosecutors with hopes of drafting a bill to correct some of the problems with the law.
A situation like the Leaches’ “on its face appears to be improper,” said Rubin, a former federal administrative judge and chairman of the House corrections and juvenile justice committee. “That’s certainly why I’m interested in conducting hearings and looking further into it. I want to more carefully refine those circumstances under which police investigatory records and reports are going to be exempt to disclosure to avoid abuses. This is an issue that continues to be of significant importance to me.”
Rubin is no stranger to trying to open up closed police records. Two years ago, the Legislature passed a bill Rubin crafted to make available the reasons why police arrest someone or search a home.
Those reports, known as probable cause affidavits, had been closed to the public almost 40 years.
But since the new law was implemented in July 2014 there still have been problems getting those records.
The Journal-World has had to take legal action in some cases to obtain records, and in at least one case no information has been released.
In a case that is almost a year old, very little information is known about why the state charged two people with human trafficking.
One of the defendants, Chen Li, pleaded guilty to one count of aggravated human trafficking and one count of sale of sexual relations and was sentenced in November to 3.5 years in prison.
The trial for the second person charged in the case, Guihong Xiao, is scheduled for Feb. 16.
In May, Douglas County District Judge Robert Fairchild sealed the arrest affidavits, and in a letter to the Journal World said he did so because the investigation is ongoing and others may be arrested.
Officials also refused to release a search warrant affidavit in the case.
So far no one else has been arrested.
Because the affidavits were sealed, because preliminary hearings were waived in both cases and because investigation files are secret, Li is in prison and the evidence used to put him there remains sealed in perpetuity.
‘The law is pretty clear’
Rubin said some judges and prosecutors are misinterpreting the intent of the law regarding the affidavits.
The law requires that once a police report’s narrative has been determined to be available to one person, it should be available to everyone, Rubin said. But some court officials believe that each time someone requests the record, a new determination of whether it is public must be made, a cost that is levied against the requester and taxpayers.
“Frankly I think the law is pretty clear now, but apparently some others don’t,” Rubin said. “We have had some uneven interpretation and application across the state of what I think are the clear requirements of the probable cause affidavit statute that we passed two years ago.”
Rubin took on the police records issue after he learned about Leawood couple Robert and Adlynn Harte who with their two children fell victim to an early-morning raid in April 2013 by a Johnson County Sheriff’s Office SWAT team searching for marijuana.
The team spent several hours tearing apart the home but didn’t find any marijuana and finally left after counseling the parents to keep a close eye on their son, who was in middle school.
The family — she’s an attorney, he’s in computer programming — couldn’t figure out why their home was searched.
The search warrant affidavit and other investigative records that would delineate the evidence the detectives used to obtain the right to search the home is not open under Kansas law.
They filed two open records requests with the sheriff’s office and were denied both times. Finally the couple filed a lawsuit, and after spending $25,000, obtained a judicial ruling opening the records.
The records showed that detectives had apparently flimsy evidence: They had pulled the Hartes’ trash and found what they believed to be marijuana. They used that to get the search warrant, but it was months later that detectives learned the “marijuana” was actually tea leaves.
Although the sheriff’s detectives realized the mistake, the Hartes never learned about it until they forced the agency to turn over the records. A federal lawsuit is pending, and they have testified before the Legislature.
In late 2013, Prairie Village paid $560,000 to Beverly Stewart, the mother of a mentally ill woman who was shot to death by the city’s SWAT team. After her daughter was killed, Stewart asked the police for the investigative file but was denied.
Stewart finally sued the city to get the file, spent thousands of dollars on the lawsuit, and a judge determined Stewart had the right to the records. Based on the evidence in the file, attorneys for the city’s insurance company advised the city administrator to settle with Stewart.
It’s not unheard of for law enforcement agencies to release investigative files, but it is rare.
During the Kansas gubernatorial election last year, Montgomery County Sheriff Robert “Bobby” Dierks released an investigative file from a 1998 case that contained damaging information about Gov. Sam Brownback’s challenger Paul Davis. Davis happened to be at the bar 16 years ago when the raid took place but was not a suspect.
’27 years is too long’
In the Leach case, his parents after several years had him declared dead. The sheriff’s office decided that Leach was a homicide victim.
Sometime in the 1990s, the Leaches filed their records request with the sheriff’s office, and Alberta Leach said they received about 60 pages, but they were all documents that she and her husband had given detectives, such as their son’s medical records, and nothing about the actual investigation.
Last year, after the Leaches had not heard from any law enforcement officers for several years, they filed a records request with the KBI but were denied.
The Journal-World also filed a records request and was turned down.
Laura M. Graham, KBI general counsel, gave several reasons in a letter to the newspaper about why the file would remain closed:
— No matter how old criminal investigation records are, “they remain criminal investigation records.”
— The file may have irrelevant information or information potentially embarrassing to someone.
— The release of the records should be in the public interest.
— The records also “must pertain to a matter which affects the community at large.”
“We believe criminal investigation records should be protected and that it is not in the public interest that they be released, particularly when a case has never been solved and remains open,” Graham wrote.
Kautsch, who has a blog called “Fresh Take on the First Amendment,” said that in most states law enforcement agencies are required to release investigative files after certain requirements are met.
In Missouri, investigations are open after a case is adjudicated, a person pleads to a crime, a jury trial is finished, or after a certain period of time passes.
In Florida and Arkansas, the file usually becomes public after a law enforcement agency finishes its investigation and forwards the case to the prosecutor and to the defendant.
Under Florida law, criminal cases that have not been adjudicated and are inactive can still become public, Kautsch said. The law defines when a case is active:
— Police can reasonably anticipate criminal activity.
— Police believe they can secure an arrest or prosecution in the foreseeable future.
— If the case has information that is directly related to pending prosecutions or appeals.
“Look how much sense this makes,” Kautsch said. “It protects the state’s legitimate good faith interest, but it also allows for public access to records that are being unreasonably held.
“If this law were in place, the Leaches would have their records already,” he said. “Twenty-seven years is too long to keep records closed.”
Besides the investigative records and the narratives of police reports, Rubin said he plans to address in the upcoming legislative session when police videos from body and car cameras should be released.