Douglas County District Court misses request deadlines regarding open records law

The Douglas County Judicial and Law Enforcement Center, 111 E. 11th St.

After a Leawood family was thrust into a lengthy and expensive legal battle with the Johnson County Sheriff’s Office, Kansas Rep. John Rubin, R-Shawnee, took notice.

In the summer of 2013, police searched the home of Robert and Adlynn Harte in a SWAT-style raid after wet tea leaves found in their trash falsely tested positive for marijuana. The search turned up no marijuana and offered no answers for the family, which soon filed suit.

“They were greeted at gunpoint by Johnson County sheriffs on suspicion that they had drugs or were producing drugs in the house,” Rubin said. “The family had nothing to do with drugs. Matter of fact, they were retired CIA employees. Nothing to do with drugs at all.”

“The Johnson County sheriff’s suspicions were totally unwarranted,” Rubin added. “But the problem that caught my attention was the Hartes had to spend $10,000 of their own money to hire an attorney and wait a year before they could have access to the affidavits supporting the search warrant, to find out why Johnson County sheriffs thought there was a drug problem at their house. And I didn’t think that was right.”

In all, the Hartes’ legal fees were approximately $25,000.

A probable-cause affidavit is the legal justification generally required before law enforcement can arrest someone or conduct searches.

Rubin called the Hartes’ situation “egregious,” but also said the incident helped precipitate a move toward increasing the public’s access to probable-cause affidavits in Kansas.

“I researched the entire issue and found that Kansas was an outlier, the only one of 50 states at that time that automatically, completely and totally sealed all probable-cause affidavits supporting search and arrest warrants,” he said. “The only state in the country that did that.”

Eventually Rubin sponsored a bill — which became law, effective on July 1, 2014 — stipulating that any member of the public may request the release of probable-cause affidavits.

After a request is submitted, the courts have 10 business days to either release the documents or inform the submitting party that the request is denied.

Within that 10-day period, courts are also able to redact certain information within the documents.

“There are certain circumstances, no question, where law enforcement does have to have an opportunity to keep records confidential,” Rubin said. “If there’s an ongoing criminal investigation, if there were co-conspirators or co-actors in a particular crime and some of them are still on the loose, the prosecutors need to be able to protect that information until they make all arrests in the case.”

Although that law has been on the books for nearly two years, Rubin said some areas — Douglas County among them — are having problems following the rules.

For example, since December the Journal-World has filed at least 30 requests for probable-cause affidavits. Of those 30 requests, eight — more than 25 percent — were released beyond the 10-day waiting period written in the law. One document was not released until nearly a month and a half after the request was submitted.

The documents requested by the Journal-World include evidence supporting the arrests of those accused of sex crimes, murder, battery, drug offenses and more.

There are two things districts across Kansas are doing to skirt the laws, Rubin said. They are either delaying beyond the allowed 10-day period, or they are requiring each individual to file a separate request, even if that request is for an affidavit that’s already been released to a different person who requested it.

“That was never the intent of the law,” Rubin said. “And we have a bill pending this year that I wrote to clear up that discrepancy, to make it clear that once an affidavit is released it’s part of the public record and it’s available to everybody. Press, public, whoever.”

Max Kautsch, a Lawrence attorney who focuses on First Amendment rights and open government and who has represented the Journal-World in matters, said Kansas courts taking longer than 10 days to release probable-cause affidavits are “in violation of the law.”

“But it’s less clear what there is to do about it,” he said.

One option, Kautsch said, is to file suit, which he called an “expensive proposition.”

In addition, court schedules are often very busy and time-limit violations for open records requests may be considered low priority, Kautsch said.

Not all areas in Kansas have problems following the law, Kautsch added. Sedgwick County District Court, which includes Wichita, is “doing a really good job” despite receiving what is likely a much higher volume of requests than smaller districts, he said.

If courts are intentionally skirting the law, Rubin said his response is “too bad.”

“The court would have zero tolerance if I did not comply with one of their orders issued to me,” he said.

However, Douglas County District Court Chief Judge Robert Fairchild said the district is not intentionally missing request deadlines.

“I don’t think that’s happening here,” he said. “Early on we had a couple judges that were still operating under the old rules and I talked to them and said, ‘You can’t do this.'”

The likely explanation, Fairchild said, is that the paperwork is falling victim to the busy schedules of those involved in the process.

Submitted requests must go before both prosecuting and defense attorneys, court administrators and respective district judges before they can be released, Fairchild said. And within that process those involved may forget about the request or it may be a lower priority than other items.

Douglas County District Court Records Department Supervisor Deana Sage said she couldn’t exactly pinpoint why some requests are released past deadline.

“I try to keep track and if they’re coming up close to the date I’ll send a note to the judge,” she said.

Because each request must go before so many different people before it’s released or denied, it’s difficult to keep track of where the breakdown in the process may be, Sage said.

However, if the requests end up taking longer than 10 days, Fairchild said it isn’t because he takes issue with the legislation.

“It’s the law,” he said. “If that’s what they think is appropriate we’re happy to do it.”

Kansas’ open records law may soon see another change. On March 16, an amended bill passed in the state Senate that, if passed, will allow judges to redact or seal affidavits if they specifically feel the documents contain information qualifying as “a clearly unwarranted invasion of personal privacy.”

Open records advocates have expressed concerns that the new bill will essentially eliminate the public’s access to probable-cause affidavits.

A form of the bill has passed the House and the Senate and is currently in a conference committee. The committee plans to take up the issue when the Legislature returns from its spring break in late April.