By Max Kautsch 

A Kansas District Court judge kept a court record under seal last month in a noteworthy civil case after receiving a letter requesting the record and questioning the validity of the seal.  In response to the request, made by a researcher under the Kansas Open Records Act (KORA), the judge indicated he had reviewed his procedures in the case, and he cited a litigant’s privacy as his justification for the seal.   

The process that led to the judge’s decision highlighted: 

  • how journalists and members of the public may invoke KORA to remind judges, as well as lawyers who appear before them, of the presumption that court records are open to the public, and
  • how requesting a sealed court record under KORA can, at relatively low cost, prompt judges to review whether they imposed the seal in compliance with applicable law, which basically requires them to conduct a hearing and make specific findings on whether any party has articulated interests sufficient to overcome the presumption of openness.

The seal on the requested record was imposed by Chief Judge Preston A. Pratt, Phillips County District Court, on April 1, 2022, in Ross v. Nelson, #2019-CV-000014.  He indicated the purpose of the seal was to prevent public disclosure of information about the defendant’s finances in the case—a dispute between landowners that involves trespass and punitive damage claims.  

The limitation on public information about case caught the eye of Kirby Ross of the Phillips County Review, an award-winning, weekly KPA-member paper in Phillipsburg (Kirby Ross is not related to the party named Ross in the case).  Believing something was amiss, Kirby called the case to the attention of the KPA, including consultant Mike Kautsch, a retired law professor who engages in public policy research.  

Kautsch initially submitted a request May 2, 2022, for several records in Ross v. Nelson.   After paying a $10 fee required by the court clerk, Kautsch received the requested records in Ross v. Nelson, except for the one that had been sealed.   

The records Kautsch received included video of a March 11, 2022, hearing at which Judge Pratt considered a proposal by the attorney for the defendant in Ross v. Nelson to limit discovery—i.e., the exchange of evidence between attorneys before a trial.  The defendant’s attorney argued that financial information about the defendant should not be publicly disclosed and discussed only in closed court proceedings.  The plaintiff’s attorney objected, saying, a “free and open court for the people of our nation” is the prevailing rule.    

On April 1, 2022, Judge Pratt issued a protective order prohibiting public access to certain financial information of the defendant produced “at a hearing, or otherwise,” as well as access to “hearing transcripts.” The order resulted in sealing of the defendant’s financial information. 

Kautsch requested the sealed record May 24, 2022, telling the court clerk that, “the order prevents certain information from being revealed during public court proceedings and from appearing in any written, official record of such proceedings.  Moreover, because the order also applies to certain information ‘otherwise’ produced, the seal appears to have unlimited reach into the public sphere.”     

Kautsch’s request further relayed that the records he reviewed in Ross v. Nelson “do not clearly show” that the defendant’s information “was sealed pursuant to the prescribed procedure for overcoming the presumption of openness. Thus, in my view, unless or until the District Court acts pursuant to that procedure, [the record] remains presumptively open.”  Kautsch also noted that the District Court’s April 1, 2022, protective order “does not set forth specific findings, evidence and factors it relied upon in sealing certain information.”  He reviewed court precedents that restrict conditions under which a presumptively open record may be sealed, including a key 1981 ruling by the Kansas Supreme Court in Kansas City Star v. Fossey, which recognized the presumption that court records are open. 

On May 31, 2022, Judge Pratt issued an order indicating no further proceedings about the seal were necessary, and he placed a formal finding on the record that the seal was justified under a KORA provision that exempts records from disclosure if they “constitute a clearly unwarranted invasion of privacy.”   

Kautsch’s assessment of the ruling was that Judge Pratt “may have concluded that the March 11th hearing essentially fulfilled the requirement that he hear arguments about sealing.  Also, he may have felt that citing a KORA privacy provision satisfied the requirement for specific findings to justify sealing a record.” 

“Still,” Kautsch said, “Judge Pratt ideally would have done much more to comply with pre-requisites for sealing a record and explained his reliance on the KORA privacy provision he cited.  However, he at least evidently reflected on his sealing of the record in light of open-records law I reviewed in my request.  It’s good that he shared the review with attorneys in the case and placed it in the court record.” 

Kautsch added that he hopes journalists and members of the public regard open-records requests as a constructive and cost-effective way to press officials to comply, not only with the letter, but also the spirit, of KORA.