TOPEKA — Public records never meant a lot to Robert and Adlynn Harte — until police raided their upscale Leawood home two years ago.
By BRAD COOPER
The Kansas City Star
The failed search for marijuana set the Hartes on a yearlong crusade for documents to shed light on what led to a search likened to a military operation that produced no charges or evidence.
The Hartes spent $25,000 working to get the records.
Now they’re lobbying the Kansas Legislature to make it easier to get at such records.
“We’re accidental activists,” Adlynn Harte said.
The two former CIA employees appeared Wednesday at the Kansas Capitol, asking legislators to make public the key police documents — probable-cause affidavits — used to justify arrests or searches.
Kansas is the only state in the country that keeps such documents from public view, say open-records advocates who argue for more transparency on the activities of police and prosecutors.
The affidavits are sworn documents that include evidence and establish the probable cause to legally justify a search, an arrest or criminal charges.
Most states sometimes restrict access, but only until the arrest warrant is carried out.
The Legislature closed such records in 1979 after a Topeka newspaper included information about an arrest warrant issued in a murder case before it was carried out, said Wichita media lawyer Lyndon Vix. Lawmakers reacted by passing a law sealing such affidavits, he said.
Today probable-cause affidavits start out closed. Only a court order makes them open to the public. A bill by a Johnson County lawmaker would reverse that process, meaning prosecutors would have to convince a judge that a record should stay out of public view.
Search warrant affidavits would not be open to the public under the bill introduced by Shawnee Republican Rep. John Rubin. But, with some exceptions, those documents would be available to the target of a search.
“The burden should be on law enforcement to justify the need for keeping any part of a record from being revealed,” Rubin said. “The burden should not be on the individual to go and justify their right to see those documents.”
The bill drew a sharp reaction from law enforcement circles. Prosecutors contended the bill would provide gritty details about criminal cases that the media would sensationalize.
Riley County Attorney Barry Wilkerson said the bill does more more to help the media than to help individuals.
“It’s not going to be the public that’s going to rush to the courthouse to get an affidavit. It’s going to be the media,” Wilkerson said. “There’s not going to be any checks and balances on the government.”
Some of those opposing the bill said keeping the records closed is essential to protecting the rights of the accused and to keep publicity from influencing a jury.
They also stressed that the records might contain sensitive information about victims, confidential sources or investigative techniques that might be compromised.
Johnson County District Attorney Steve Howe said information in a probable-cause statement eventually comes out as the investigation evolves.
“It’s more about the timing in many of these instances,” Howe said, “not necessarily that the information isn’t provided.”
The Hartes wanted the affidavit in their case to explain why Johnson County sheriff’s deputies searched their home after they bought indoor gardening supplies from a hydroponics shop. Police had been watching the store looking for people buying equipment for growing marijuana.
Similar bills opening up the affidavits have been considered in the past. But open-records advocates say the Hartes’ case may provide a stronger case for more transparency.
The Kansas open-records law gives law enforcement broad latitude for closing investigative records, experts in Kansas media law said.
It’s very difficult to get records “unless the cops want you to have it, then all of sudden the walls come down and the cops are literally knocking at your door wanting publicity,” said Kansas City media attorney Bernie Rhodes.
Media law experts point to a pair of high-profile quadruple murder cases last year — one in Franklin County and another in Parsons, Kan. — as evidence that law enforcement is more aggressively closing off access to records.
Without the probable-cause statements, few details are available about either case. That, critics said, makes it difficult for the public to hold law enforcement accountable.
In Parsons, the local newspaper publisher still doesn’t know many of the facts of the case, including how the people died and what relationship the suspect had to the victims.
Parsons Sun Publisher Peter Cook called the state’s open-records law “pretty darn weak” because law enforcement can keep documents sealed if there is a continuing investigation.
In the Franklin County case, there was initially an effort by prosecutors to close an evidence hearing that was later dropped. There are now motions under seal for admitting a statement, DNA testing and a subpoena for business records.
News media groups say opening law enforcement documents will keep public officials more accountable.
“We have seen a growing tendency in recent years to automatically close off information about murders that the public has a right to know,” Kansas Press Association executive director Doug Anstaett said in an email.
“How can we possibly judge whether law enforcement and the courts are doing their job,” he said, “if we have no access to the information that would help us form that opinion?”
To reach Brad Cooper, call 816-234-7724 or send email to firstname.lastname@example.org.