Eagle wins lawsuit over Wichita police body-cam footage after 38 months in court

The Wichita Police Department cannot use the state’s open records law to block the release of body-camera footage to The Wichita Eagle, a Sedgwick County District judge ruled Wednesday.

The city also cannot deny copies of the videos because they are easily duplicated “computer data” and not “recording tapes or discs, video tapes or films,” which are not required to be copied under Kansas law, the ruling says.

The decision is the latest in a 38-month legal battle over Wichita police body-camera videos the city has refused to release in two high-profile incidents related to police conduct.

One of the requests was for video tied to an alleged cover-up by the Wichita Police Department of a hit-and-run collision involving an off-duty officer that was investigated by the FBI.

The second case involves an Iraqi-American man who was handcuffed before he, his wife and their 15-year-old daughter were detained and questioned by Wichita officers after the man tried to deposit a $151,000 check at Emprise Bank, 2140 N. Woodlawn. They were released without charges after police determined the check was real. Sattar Ali, the man who was handcuffed and taken downtown, told the Eagle he thought he and his family were racially profiled.

In a written decision, Sedgwick County District Judge Jeffrey E. Goering said the city of Wichita “acted in bad faith and without a reasonable basis in law” by withholding the body-camera footage.

He ordered the city to pay the Eagle’s legal fees and slapped down claims by the city’s attorney that release of the videos was not in the public interest.

“All indications are that the City was simply looking for an excuse under KORA to deny the Eagle’s request,” he wrote, “which is contrary to KORA’s presumption that the production of records should be the rule, not the exception to the rule.”

The city sent a one-sentence email in response to a request for an interview with the city manager about the lawsuit.

“While the City respectfully disagrees with the District Court’s decision in this case that the City’s actions were in bad faith or unlawful, we will abide by the decision,” the statement said.

In the public interest

In the first case, the city denied the request because the video was “considered criminal investigation records.” But the city had already closed its internal probe and could provide no evidence of any ongoing investigation.

In the case involving the Iraqi family, the city initially approved The Eagle’s request, then later denied it after an Eagle reporter questioned the cost. The city attorney said the video did not have to be released because it was not shown at a public government meeting, it was a record of a criminal investigation and the release was only authorized to a limited list of people.

After viewing the footage, Goering determined video of both incidents should be released with limited redactions and explained in a written decision why release of the police body-camera footage is in the public interest.

In the hit-and-run case, it is “a matter of public interest because the community at large has an expectation that police investigations will be conducted fairly and appropriately, especially when a police officer is implicated,” he wrote.

The city had argued that releasing the videos would not serve the “public interest” as defined by KORA and would instead serve to satisfy mere “public curiosity.”

“Whether the WPD applies the same investigative standards to alleged wrongdoing involving one of their own officers as is applied to the public at large is more than just a ‘public curiosity,’” Goering wrote. “It goes to the core of public confidence in law enforcement, and is thus most definitely in the public’s interest.”

Goering applied similar reasoning to the bank case.

“When an innocent person and their family is detained, if there is to be any public confidence in law enforcement, the public is entitled to know why,” he said.

Lyndon Vix, The Eagle’s attorney, said the ruling is significant in multiple ways, from broadly defining “public interest” to clarifying that digital video files should be treated as computer data and not physical video tapes that are more difficult to store and copy.

“We have never had a decision previously that says that computer data doesn’t fall within this statute that says that government agencies don’t have to turn over copies of certain visual and audio materials like videotapes and audio recordings,” Vix said. “That’s archaic stuff from when KORA was first passed back in the eighties. But it’s used by agencies to justify not turning over copies of things that are very easy to turn over, like computer data on a flash drive. So now we have a decision that says that computer data is not of the same character as those other materials, and you do have to turn over copies.”

Vix said it’s also significant that the court took a stand against public agencies that regularly hide behind KORA exemptions.

“I don’t want to just pick on the city, but I feel like agencies do this all the time when they get a KORA request,” Vix said. “If it has any possibility of being negative towards the agency, they will desperately look for reasons not to turn over the requested records. And this decision says that is not the approach they are supposed to take.”

‘A huge step forward’

Emily Bradbury, executive director of the Kansas Press Association, called Goering’s ruling “a huge step forward” for transparency in Kansas.

“A healthy democracy depends on the government sharing information with the governed,” Bradbury said. “The judge’s ruling in this case warns public agencies that there are consequences for keeping the press in the dark. We are hopeful that public agencies throughout the state will be more inclined to reasonably respond to open records requests going forward.”

Under Kansas law, records — such as body camera videos — produced by public agencies in the state are assumed to be open to public inspection by any person unless otherwise narrowly exempt in the Kansas Open Records Act. The law requires the sunshine laws to to be “liberally constructed and applied to promote such policy.”

Eagle reporters Tim Potter and Amy Leiker requested body camera video from the incidents in 2017. But the city denied their requests, citing exemptions in the Kansas Open Records Act that allow public agencies to withhold otherwise open records.

When a public agency decides to withhold open records, it is required by law to point to a specific state statute that exempts the record.

In the hit-and-run case, the city denied The Eagle’s 2017 request for the body camera videos, citing exemptions that allow government agencies to withhold records that would interfere with a criminal investigation if released. The city also claimed the only people authorized to view body camera videos are the subjects of the videos and their legal representatives, such as a parent or attorney, not reporters.

In the bank case, the city initially said it would release a redacted version of the footage for $441. But after an Eagle reporter asked for more details on the charges, City Attorney Jennifer Magana sent a letter denying access to the videos. Magana said the videos weren’t open records because they had not been shown during a public meeting. The city again said only people in the body-camera videos are allowed to view the footage.

The city later claimed the change was made out of concern for the privacy of the family police had previously detained.

The city later abandoned those arguments and acknowledged in court filings that the exemptions did not apply. Instead, it argued that releasing the video would not be in the public interest and instead “public curiosity.”

Goering admonished the city for changing its legal basis after The Eagle sued for the records, calling the approach “untenable.”

“The City simply cannot do this,” Goering wrote. “To do so would defeat the purpose of requiring a written denial stating the specific exception within 3 business days of the request. It would, for all intents and purposes, require a requestor to file suit under KORA to determine the real reason for denial of a KORA request.”

Wichita Eagle Executive Editor Michael Roehrman said the ruling is a win for the newspaper.

“What it signifies is that The Eagle is going to fight for these records every chance we can,” he said. “We are fighting for accountability and the public. And it may take a while to get results, but we’re not going to let go.”

But more than that, it’s a win for the Wichita community, he said.

“Access to government records by anybody, not just the media, is vitally important, and it needs to be defended fiercely,” he said. “That’s what we did here.”

This story was originally published February 14, 2021 at 5:01 AM.