THE DARK STATE: How did Kansas come to close its records?

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The fight today in Topeka over the Kansas law that closes police records is more than three decades old.

EDITOR'S NOTE: HB 2555, which would've opened some records to the public, was all but killed the night of March 25, by the Kansas Legislature.

It began in about 1978 with a Topeka Daily Capital newspaper reporter and the Douglas County attorney, according to a Kansas Supreme Court case.

Douglas County sheriff's deputies were investigating a murder and received information that two men driving a stolen car had some connection.

Arrest warrants were issued for the men's arrest.

Sherry Pigg, the reporter, heard the police issue a bulletin about the men over a police radio and contacted the county attorney who asked her not to publish the names of the suspects until they were apprehended. He feared it might hamper the ability of law enforcement to find them.

When Pigg refused, the county attorney warned her if the names were published, the newspaper could be prosecuted. A sheriff's deputy also warned Pigg.

Pigg obtained confirmation of the men's names from the warrants that were kept in a public place in the courthouse.

The newspaper published the names, and one of the men was never found. Law enforcement blamed the newspaper.

Stauffer Communications, the newspaper's parent company, was charged with unlawful disclosure of a warrant, a class B misdemeanor, and found guilty.

The case went to the state's supreme court and the conviction was overturned. The ruling said the information had been obtained legally and the state's constitution and bill of rights prohibit criminal sanctions against anyone for truthful reporting.

In a quick turn of events, Vernon Miller, the state's attorney general, asked the state legislature to try to guarantee that no newspaper would ever have that information again.

In what some call a “knee-jerk reaction,” the state legislature shut down public access to most police records. The law makes it almost impossible for the public, the media, victims and even those who are arrested but never charged with a crime to see the evidence. Even those charged with a crime can wait months before they see the records.

Year after year, a group of Kansans have filed bills to try to get the legislature to fix the law.

But it has been an exercise in futility.

The pleas of media groups and open records advocates fell on deaf ears of legislators who said the so-called “media bill” was supported only by media groups.

But this year is different. For the first time since the 1980s, a bill made it out of the house.

That's because victims of closed records are coming forward -- like the Hartes of Leawood whose home was searched with flimsy evidence -- to say the closed records harm democracy and end up costing the victims thousands of dollars to obtain the records.

“If law enforcement isn’t open and transparent, the public doesn’t have an opportunity to scrutinize the competency and the degree of care given by police power,” said Mike Kautsch, a law professor and former journalism dean at the University of Kansas. “When you have lack of transparency, there tends to be abuse of police powers. It means people can suffer overzealous or careless police officers without a means to even document or challenge the abuse.”

This year's bill, HB 2555, would make arrest report affidavits public just like in other states like Oklahoma, Nebraska, Alabama and Missouri.

With the backing of Rep. John Rubin, a Shawnee Republican and retired federal judge, it passed by a landslide 110-13 vote in the House of Representatives.

But in the Senate, with heavy opposition coming from county prosecutors, the bill has hit a snag. An amendment removed the arrest warrant provisions.

With two weeks left in this session, Rubin remains hopeful the bill will be reinstated, but disappointed at the strong stand county prosecutors have taken.

County prosecutors including Johnson County District Attorney Steve Howe say that they work hard to obtain justice and agree that the criminal system needs to be as transparent as possible.

Howe told a senate committee that the house bill would create too much work for prosecutors to make sure that rape victims names were not released and said there needs to be a balance.

Rubin disagreed and said all other state agencies must be as open as possible, and so should county attorneys and law enforcement agencies.

He said that last year, the Shawnee County prosecutor vigorously went after legislators for violating open meetings laws.

“(Prosecutors) are the first to enforce transparency on other agencies,” Rubin said. “Sauce for the goose is sauce for the gander. They should shine the light on themselves if they are to shine the light on the rest of us.”

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