Opening affidavits that justify search warrants or arrests would make law enforcement more transparent and accountable, citizens and media advocates said.
But it also would put victims at risk and endanger defendants’ right to a fair trial by tainting jury pools, district attorneys from around the state warned.
Competing interests came to the fore Wednesday during a hearing on House Bill 2555, which would make affidavits of probable cause public records.
If the bill passes, people who have their property searched would have access to the affidavit that provides the police department’s justification, and the public as a whole would have access to affidavits that show probable cause for arrest.
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In Kansas, these documents are presumptively sealed. The bill would still allow prosecutors to seal or redact the records if necessary to protect a victim or informant.
The bill’s sponsor, Rep. John Rubin, R-Shawnee, a former federal judge, noted that such records are open at the federal level and in at least 39 of 40 states studied. Only New Jersey also restricted these records, he said.
Once affidavits are filed, they become court record and should be open to the public, said Olaf Frandsen, editor and publisher of the Salina Journal, speaking on behalf of the Kansas Press Association.
“Kansas should not be an outlier. Kansas should embrace the spirit of open government and rip the veil of secrecy off of arrests and search warrants,” he said.
Among those testifying against the bill was Sedgwick County District Attorney Marc Bennett. When he ran for office in 2012, he told The Eagle that he wouldn’t oppose opening probable cause affidavits
On Wednesday, he said he had not reversed his position and that he still supports greater transparency of the criminal justice system. This bill swings the pendulum too far, he said.
“I’m not opposed to opening affidavits. I’m opposed to wholesale opening of every affidavit. Because with this bill as it’s written, (it) puts the burden on me to show why the address of a child shouldn’t be on there,” Bennett said after the hearing.
Bennett also is worried about the cost and time unsealing records would require. Bennett said it would take his office 10 weeks to do a five-minute reading of all 5,000 affidavits filed in Sedgwick County last year.
He proposed a compromise in which media organizations would have to go to court and request the affidavits they want.
“I’m just trying to say, (I’ll) give you what you need when you need it. But don’t ‘Katie bar the door’ and throw everything out there,” Bennett said.
Although much of the focus of the hearing was on what media organizations would do with increased access to public records, the bill started with two private citizens.
Robert and Adlynn Hartes’ Leawood home was searched by the Johnson County Sheriff’s Department on suspicion of drugs in April 2012.
The deputies found nothing. It took the Hartes until April 2013 to obtain the affidavit that explained why their home had been searched, according to a letter from the attorneys for the sheriff’s department that Adlynn Harte showed at the hearing. And it happened then only because they took their story to the Kansas City Star, she said.
Adlynn Harte said she and her husband met while working for the CIA in Washington. She said the CIA is more forthcoming with public records than the state of Kansas is.
Robert Harte said the right of private citizens to access information that concerns them should be self-evident, but he argued that the media also needs access to provide oversight.
“We need someone to keep an eye on the government,” he said.
Rep. Les Osterman, R-Wichita, said many of his constituents want more openness with government. He asked why the records need to be closed.
“It makes me wonder, are we hiding something by having this always sealed like this? What are we hiding?” he said.
Bennett cautioned against having “a knee-jerk reaction” to the Hartes’ case.
Legislators should be careful when recrafting the machinery of records, said Ed Klumpp, legislative committee chairman for the Kansas Association of Chiefs of Police.
Barry Wilkerson, Riley County attorney, warned that the bill would give journalists an opportunity to reveal information that should be kept private. He said that even if a rape victim’s name is redacted, there would be potential that his or her identity could be discovered.
He also said gory details would be published by unscrupulous journalists.
“When you have a homicide victim whose genitalia is mutilated, I can tell you this, the victim’s family doesn’t want it on the front page or on TV,” Wilkerson said.
Releasing affidavits as a public record would taint jury pools before a trial, he said, questioning how this counted as government oversight.
“You put out there in the press that the defendant confessed when he was arrested because it’s in the affidavit, will people have made up their mind? Is that a check on law enforcement? No, it’s not a check at all on law enforcement,” he said.