It is gratifying to see that the Kansas House Judiciary Committee this week advanced a bill to the House that would make affidavits police use to justify arrest warrants open to the public. It also would allow persons who have been searched or whose property has been searched access to affidavits associated with the search.
Both changes are overdue, although others should have access to the search-related affidavits.
For years, Kansas has been all but alone among states in maintaining the secrecy of these affidavits. What’s more, federal officials routinely release information that Kansas allows law enforcement agencies to keep sealed. If the federal government and other states can operate with open affidavits, so can Kansas.
Sealing them is unnecessary and reflects a distrust of the public whom law enforcement officials serve. Worse, it can allow unscrupulous law enforcement officers to abuse their authority with impunity.
Fortunately, the latter are the exception. Members of the criminal justice community across Kansas are overwhelmingly honorable, and seal records in part because they’ve always done it. Yes, they need wide latitude to perform their duties, but they must also be held accountable to the citizens they serve. Law enforcement’s concerns cannot take precedence over the constitutional rights of the individual.
Perhaps the strongest justification for unsealing probable cause affidavits is in the wording of the Kansas Open Records Act. It states: “It is declared to be the public policy of the state that public records shall be open for inspection by any person unless otherwise provided by the act, and this act shall be liberally construed and applied to promote such policy.”
As the Kansas City Press Club noted, “the phrase ‘shall be liberally construed’ makes it clear that closure of probable cause affidavits is inconsistent with the intent of long-established policy and law.”
Public access to the probable cause affidavits, when it does not interfere with law enforcement, would ensure that officials abide by the same laws they enforce.
Advocates of keeping the affidavits sealed argue that investigations may be compromised or that the identities of informants or undercover officers may become known. Another concern is that releasing the information could result in undue publicity that could affect the outcome of a trial.
No responsible person or news outlet would advocate compromising either investigations or the identities of informants or undercover agents. But that concern can be easily dealt with — and is in the House bill — by allowing for the redaction of sensitive names while making the rest of the affidavit public.
As for prejudicial publicity, that fear is exaggerated, especially if sensitive identities are redacted. Accurate and complete public information early in the process is more likely to ensure a fair trial than undermine it.
In one Kansas judicial district, the Fifth, which consists of Lyon and Chase counties, these affidavits have been unsealed as a matter of policy since 1981, and justice there has not suffered.
Nor will it suffer if the Legislature adopts that policy statewide.