May a law enforcement agency refuse to provide copies of records created, collected, possessed or maintained in connection with a criminal investigation?
Yes. Under K.S.A. 45-221(a), the KORA allows closure of criminal investigation records, which are defined at K.S.A. 45-217. A copy of these statutes are available on-line at www.kslegislature.org.
Does the law enforcement agency have to give me a reason why they are closing a criminal investigation record/file?
Yes. But only if you ask for that explanation. K.S.A. 45-221(a) requires custodians of criminal investigation records, upon request, to identify which factor(s) in (A) - (F) are applicable to the record(s) being closed under this exception. While criminal investigation records may be discretionarily closed, this is the one category of records which lists criteria for review of whether the decision (to close the record) is warranted. The factors to be considered basically weigh public interest in disclosure vs. harm of disclosure.
What factors are supposed to be considered in deciding whether to open or close a criminal investigation record?
K.S.A. 45-221(a)(A)-(F) list the factors to be weighed in deciding whether to close or open criminal investigation records: The district court may order disclosure of such records, subject to such conditions as the court may impose, if the court finds that disclosure: (A) Is in the public interest; (B) would not interfere with any prospective law enforcement action, criminal investigation or prosecution; (C) would not reveal the identity of any confidential source or undercover agent; (D) would not reveal confidential investigative techniques or procedures not known to the general public; (E) would not endanger the life or physical safety of any person; and (F) would not reveal the name, address, phone number or any other information which specifically and individually identifies the victim of any sexual offense.
When it is it in the "public interest" to open or close criminal investigation records?
"'Public interest' . . . means an interest in a matter affecting a right or expectancy of the community at large. Mere curiosity about the circumstances surrounding an investigation is not sufficient." Harris Enterprises, Inc. v. Moore, 241 Kan. 599 (1987).
Why did the legislature allow criminal investigation records to be discretionarily closed?
The legislative intent behind the criminal investigation records exception to the Kansas Open Records Act is to protect innocent persons whose names might be involved in an investigation, either as possible suspects or as informants. See Seck v. City of Overland Park, 29 Kan. App. 2d 256 (2000). The closure authority also allows the criminal law enforcement agencies to protect the integrity of an-going case, protect informants, keep secret the methods of investigation not generally known by the public, and retain some ability to take future enforcement actions on a "cold-case."
What if I am the victim of an alleged crime, does the KORA give me greater access to a criminal investigation record or file?
No. The KORA does not give victims or anyone else "special" status with regard to obtaining access to public records that may be closed under K.S.A. 45-221(a).
What if I am the defendant in a criminal case; does the KORA give me greater access to a criminal investigation record or file?
No. The KORA does not give defendants or anyone else special status with regard to obtaining access to public records that may be closed under K.S.A. 45-221(a).
Is there a difference between criminal investigation records and criminal history record information?
Yes. Criminal investigation records mean records of an investigatory agency or criminal justice agency as defined by K.S.A. 22-4701, compiled in the process of preventing, detecting or investigating violations of criminal law. Criminal history record information (CHRI) describes an individual’s arrests and dispositions. The CHRI records are part of the KBI computer system as electronic data (known as the computerized criminal history) and are also contained in paper documents at the KBI. Dispositions consist of data regarding prosecutors’ actions, court dispositions and confinements in state correctional facilities. The KBI CHRI system consists of felony and misdemeanor events that occurred only in Kansas, and confinements to state correctional facilities under the control of the Kansas Department of Corrections. It does not include any arrests or dispositions that occurred in another state or under federal law.
May I obtain copies of my own criminal history information records?
Yes. You can get this information (commonly called a "rap sheet") on yourself. It is available if requested by the person in question, and may be available to specific other entities (including law enforcement agencies). It is not available to the general public . For access to your own information, or to ascertain if information about someone else is available to you, you should contact the Kansas Bureau of Investigations (KBI) at 785-296-8200, or go to the KBI's web site at http://www.kansas.gov/kbi/criminalhistory/
Are court records or docket sheets considered criminal investigation records?
No. Court records and docket sheets may not be closed as criminal investigation records. See K.S.A. 45-217(b) and A.G. Opin. No. 87-145. There may, however, be other laws or court rules closing specific court records. Check with the clerk of the court or go to http://www.kscourts.org/appellate-clerk/general/open-records-act/default.asp for more information on access to court records.
Are jail rosters or police blotters criminal investigation records?
No. Police blotter, roster of jail inmates report are open to the public. If a police department does not maintain a blotter, they are under a common law duty to disclose basic information about arrests reasonably contemporaneously with the arrest. A.G. Opin. No. 98-38.
Is the front page of the standard offense report considered a criminal investigation record?
No. The front page of a standard offense report is open to the public.
Are mug shots or standard arrest reports open to the public?
No. Mug shots or standard arrest reports may be discretionary closed under K.S.A. 45-221(a). Mug shots and standard arrest reports are not required to be open to the public. A.G. Opin. No. 87-25, 98-38.
May the log of breath test results be considered a criminal investigation record?
Yes. A log of breath test machine results can be a criminal investigation record. A.G. Opin. No. 87-63.
May coroner reports or autopsies always be closed as criminal investigation records?
Not always. Coroner reports are subject to disclosure unless they have been filed with the clerk of the district court and designated as a criminal investigation record. A.G. Opin. No. 86-5 and K.S.A. 22a-232. Autopsies as part of coroner's reports are open unless the coroner's report is filed as a criminal investigation record. Burroughs v. Thomas, 23 Kan.App.2d 769 (1997).
If no criminal charges are ever filed, does that mean that the criminal investigation records become open?
No. This closure authority still exists, even if no criminal prosecution takes place; records qualifying as criminal investigation records may be closed, as long as the investigation was done by criminal law enforcement agency trying to determine if any crime occurred. See Seck v. City of Overland Park, 29 Kan. App. 2d 256 (2000).
May a law enforcement agency close public records or information that could reveal the identity of an undercover agent or informant?
Yes. Information which would reveal the identity of any undercover agent or any informant reporting a specific violation of law may be closed under K.S.A. 45-221(a).
Can I access arrest or search warrants under the KORA?
No. The procedure to get copies of affidavits or sworn testimony used in support of the probable cause requirements for the issuance of arrest or search warrants is not a part of the KORA.
During the 2014 Legislative Session, changes were made to K.S.A. 22-2302 and 22-2502. These statutes concern arrest and search warrants. The changes are set out in S. Sub. for HB 2389. This bill creates a separate procedure to access affidavits and sworn testimony about arrest and search warrants. You may review that bill here:http://www.kslegislature.org/li/b2013_14/measures/hb2389/.
There are two (2) time periods covered by the bill:
- Warrants executed before July 1, 2014:You must obtain a court order to access affidavits and sworn testimony about arrest or search warrants that were executed before July 1, 2014.You must send your request to the attention of the assigned case judge for consideration.
- Warrants executed on or after July 1, 2014:You cannot access affidavits and sworn testimony about arrest or search warrants executed on or after July 1, 2014, until after the warrant is executed.A request for copies of these records must be filed with the clerk of the district court in the county where the case is filed.