Probable cause affidavits change now in effect

Posted July 3, 2014

Effective July 1, the law on probable cause affidavits for arrest warrants and search warrants has changed.

This change follows several years of effort by the Kansas Press Association and media organizations. For more than 30 years, those records have been presumed closed and could only be opened by an order of the court.

Now, with the passage of Senate Substitute for House Bill 2389, both arrest and search warrant affidavits are closed only until a warrant or summons has been executed. Then, following redaction and other actions by prosecutors and the district judge in each jurisdiction, reporters and the public can gain access.

Here are details to keep in mind:

1. These are court records and, therefore, you must approach the appropriate judge to start the clock running on your request for access to the record. You have to ask for them.

Do not approach the prosecutor, police chief or sheriff because once filed in the court, they become court documents.

2. Once you request access, the clock starts and the prosecutor is allowed up to five days to seek redactions or that a seal be placed on the requested document. Remember, like other open records laws, there is no requirement that the prosecutor or judge take the entire five days to act.

3. Once the prosecutor has made his or her decision on redaction, the presiding judge is allowed another five days to consider the request and to either accept the redactions or to deny them.

4. When that process is completed, the record, either in original or redacted form, becomes a public court record.

Remember, this is a new process both for newspaper reporters and for prosecutors. It might be a "learning experience" for both parties as we implement this new legislation. Be firm in your stance that the Legislature deemed these records of interest to the public and that they should be released as soon as possible after the search warrant has been served or the arrest has been made.

"Some prosecutors have told us they will expedite this process to open these records, but each county may handle it in a slightly different manner," said Doug Anstaett, executive director of the Kansas Press Association. "Be assertive in seeking these records. If they say 'no,' ask why?"

Here's a good article on the subject by Wichita Eagle reporter Dion Lefler.

Here's a story from the Columbia Journalism Review.