After OP police shooting, Johnson County citizen group seeks records but is denied

The public saw the dash cam video — released by Johnson County officials a month after a police officer fired 13 bullets into a minivan, killing suicidal teenager John Albers in his family’s driveway.

Now, 10 months after the Jan. 20 police shooting, a group of residents is fighting for records the city says they can’t see.

To Mark Schmid and others with the group, JOCO United, the harrowing video did not answer their questions about how a 911 call to check on the welfare of a 17-year-old ended in such violence.

The citizen group, formed after the shooting to advocate for mental health and government transparency, is wrestling with the city over just what the public can or can’t see.

Many of their requests for records have been denied — not an uncommon result given a Kansas public records law that allows officials to keep many types of law enforcement records secret.

No, the city told Schmid, it will not release the report written by the officer who shot Albers, describing the use of lethal force.

No, the public cannot see the investigative file compiled by the Johnson County Officer-Involved Shooting Investigation Team that reviewed the actions of the police officer who shot Albers.

And, no, the Overland Park Police Department’s own internal reviews won’t be made public either.

The public, Schmid said, is therefore left to rely solely on Johnson County District Attorney Steve Howe’s analysis of these investigative files.

“The investigative records should be produced,” Schmid said, “to establish the truth of what Howe presented.”

Howe’s conclusion, announced Feb. 20, was that the shooting of Albers was justified because the officer reasonably feared for his life.

Howe published a three-page summary of facts and findings that soon raised more questions as the public viewed video of the shooting. 

The prosecutor’s role, Howe said in an interview with The Star, “is solely to determine if a crime has occurred.” In this case, he determined the officer’s actions were not criminal. 

The question of civil liability, Howe said, is a separate process that can bring full discovery of information into court, and that is what is under way now in a lawsuit filed by Albers’ mother.

Attorney Mike Seck, representing Overland Park and the officer in the Albers lawsuit, said he could not comment while the litigation is pending.

There is an inherent urgency in putting light on law enforcement investigations, said attorney Max Kautsch, a board member of the Kansas Sunshine Coalition for Open Government.

“Without access to criminal investigative records,” Kautsch said, “how do we challenge or verify what law enforcement does?”

Most public records laws allow that some information should be kept confidential, for reasons that include public safety, privacy and the integrity of ongoing investigations.

The Kansas Supreme Court has described the precarious balance between necessary privacy and the public interest in opening records.

“Criminal investigation files are sensitive,” the court wrote. “Raw investigation files nearly always include the names of many innocent people. Where the files are open to public scrutiny, the potential for injury is great.”

Furthermore, if people questioned in an investigation expect their participation could be made public, it could hamper police work, the court said.

And yet other states, like Missouri, release records when an investigation is complete. In some cases, the names of at-risk witnesses can be redacted before documents are made public.

Kansas goes further than other states in guarding the privacy of officers who shoot citizens. While Missouri and other states eventually make those names a matter of public record, Kansas law does not require it.

Most Kansas agencies, including Overland Park police in the Albers shooting, do not release the names of officers involved in shootings, citing concerns for the safety of the officers and their families in what can be emotionally intense community reactions.

But the legal team behind a lawsuit against the city and the officer, filed by Albers’ mother, Sheila Albers, uncovered the officer’s name, identifying Clayton Jenison as a defendant.

Overland Park has not named the officer, but did say he resigned for personal reasons after the shooting.

Kansas law gives agencies the discretion to release many records. But they can decline to release them for reasons including ongoing investigations and the privacy of personnel records.

Anyone who wants to challenge a denial has to go to court and argue for a prevailing public interest in getting records disclosed. If a judge agrees, the record could be released.

A special state committee, formed by the Kansas Judicial Council, has been reviewing legislative efforts to amend and clarify the state’s open records law.

The Criminal Law Advisory Committee, in its latest report to the Judicial Council, argues that the state needs a better balancing test to weigh the public interest in evaluating police performance against the need to protect the integrity of investigations and people’s right to privacy.

Public interest can’t be “mere curiosity,” the committee’s report said. But the purpose of the open records law “is to encourage government transparency.” The definition of public interest has to focus on the common goal of evaluating governmental performance, it said.

As an ad-hoc member of the advisory committee, Topeka state Rep. John Alcala, a Democrat, has participated in a difficult debate, he said.

Cautionary voices protective of law enforcement have raised a list of “what-ifs?” Alcala said, asserting the need to allow some discretion.

“But there is a community concern about this (need for public records),” he said. “The more open you are, the more honest the process is.”

Kautsch said it is hard to imagine a more powerful public interest than being able to thoroughly judge the actions of officers when they have shot and killed someone.

“Someone has died,” Kautsch said. “That’s the most important thing that can happen, and it was done by the state, by its officer.”

Howe said the civil court process, though it may be slow, provides a path for deeper scrutiny. In his role as prosecutor, he feels the state should guard the privacy of people involved in investigations.

In his summary of findings on Feb. 20, he wrote:

“This tragic situation was tense, uncertain and rapidly evolving,” and “the officer had seconds to make a judgment. His judgment was not unreasonable.”

Schmid and others with JOCO United, limited to what they see in the dash cam video, see a van with a troubled teenager backing slowly down the driveway. They see what they think was an officer who was in no danger when he fired.

They want to see the rest of the evidence Howe considered in reaching his conclusion, Schmid said, so they can reach their own.

This story was originally published November 20, 2018 at 5:30 AM.