TO: Robert Layton, City Manager
FROM: Jennifer Magana, City Attorney and Director of Law
SUBJECT: Review of Confidential Files
DATE: December 23, 2015
You have requested that I review the WPD’s files commonly referred to, internally, as the “Confidential Files,” to determine if the WPD has engaged in any unlawful or inappropriate practice.
In researching this matter, I have personally reviewed all 486 cases in the general “Confidential” file. I have conducted random sampling reviews of the Homicides and Vehicular Fatalities and find only Homicides and Vehicular Fatalities in those files.
WPD staff has provided additional information upon my requests.
Some background information on the WPD’s records system is necessary. The EJUS software system receives all police reports. Over 800 WPD employees have access to it and it is a searchable database. Access is obtained by virtue of one’s status as a WPD employee. Currently over 800 employees, including Animal Control Officers, have access to EJUS, which has been in use since 2002. Every WPD employee can see all the cases in EJUS. Reports go to EJUS after WPD Records staff input data from officers’ reports.
LaserFiche is a document storage system for multiple City departments that has been used for at least 15 years. Records come from “EJUS” to LaserFiche only after supporting “paper” reports are generated in a case, then they are scanned into LaserFiche. Under the “Police” section of LaserFiche, there are dozens of categories of records databases, including crime statistics, awards, police scholarships, etc. All WPD employees also have access to LaserFiche. LaserFiche is the database containing those files referred to as “Confidential.” Access to “Confidential” files is available only to those individuals who have been given access by WPD, based on a need-to-know basis, which is determined by the Captain of the Records Bureau.
Approximately 92 individuals from 5 different agencies or departments have access:
- WPD (84)
- Sheriff (4)
- Law Department (1, until I was given access for this project, so now it is 2);
- D.A.’s Office (1); and
- City Manager’s Office (1 –Diana Mefford)
It is usually early in the investigation process that a case is deemed “Confidential,” and this is usually upon a supervisor’s request based on the facts. At that point, the Records Clerk will enter it into either the “Homicide Confidential,” “Vehicular Fatality” or “Confidential” file in LaserFiche and store the paper case file in a special area in the Records Department.
No written policies exist on these files. Their electronic origin appears to have been 1988, with cases added to the Homicide and Vehicular Fatality files from prior years.
In Laser Fiche, there are three folders of files with limited access:
- Homicides (750)
- Vehicular Fatalities (662)
- “Confidential” (486)
Vehicular Fatalities actually go back to 1950, but not consistently for each year since then. Each year since 1988 averages about 30 case files. It is possible that not all vehicular fatalities since 1988 are in this file. For example, in 2000, there are only 9 case files, but in 2001, there are 29 case files, and most other years average about 20-30 case files.
Homicides contain several sub-folders, including one just for BTK files.
The oldest subfolder I found contained records from 1936. It appears that cases have been scanned in for a variety of reasons, but not in a methodical way.
Starting in 1986, the subfolders are listed by year, with varying numbers. It is not clear what year all homicides began being “promptly” scanned into Laserfiche, as the numbers do not mirror the actual number of homicides for a given year until the late 1990’s. Even since then, the numbers of homicide cases are not always exactly the same as the numbers of homicides in the “Confidential” file.
General Information about the “general” Confidential File.
There are a variety of what I would consider “sensitive” cases – WPD officers, City of Wichita employees or “high-profile” individuals who are somehow involved in their personal capacities. Some cases are WPD officers being suspects or victims in their official capacities. There are suicides, rapes, aggravated indecent liberties, or unusual crime investigations in each year. However, from the limited number of cases per year, this would appear to include only a small percentage of those types of cases. It would not appear that there is any systematic approach to designating these files “confidential,” if the numbers are any indication.
A handful of reports about WPD employees misusing access to criminal files are included. This supports the premise that unfortunately not all employees can be trusted with the most sensitive files, and that the Confidential File system is therefore merely a pre-emptive effort to prevent unauthorized access/disclosure by those with EJUS access.
The biggest category of offenses is that of WPD officers involved in DV cases, either as a suspect (the majority are this) or as a victim.
LEGAL STATUS OF WPD RECORDS
Finally, it should be noted that all police files are inherently “confidential,” because they are law enforcement investigative files created by a criminal justice agency. As such, they are governed by state law and KBI regulation, not just by WPD policy and practice. Only the front page of a police report, the “Kansas Standard Offense Report,” is automatically subject to mandatory disclosure under the Kansas Open Records Act, unless other factors apply. Under K.S.A. 22-4707, the WPD is restricted on disseminating “criminal history record information,” which includes arrest information. It is a misdemeanor to improperly release it. Therefore, it is prudent to exercise caution with the release of any criminal investigation record.
WPD’s practice of limiting access to certain files recognizes that all employees do not have a business reason to have access to all files. Limited-access databases exist in this and many public and private entities. The informal name of this database, “Confidential Files,” is indeed a misnomer, and invites a misconception that these files are “secretive.”
This practice further recognizes that employees have curiosity about cases involving a WPD or City employee, a well-known or high-profile citizen, or a case that draws media attention, and for that reason, it is a sound business practice to limit access to these types of cases. The intent, and the result, is to limit internal access, but not external access that is otherwise legally allowed.
The system appropriately exists to prevent “snooping” by curious employees who have no business need to access these files and to protect the integrity of certain investigations.
The use of a limited access database does not prevent access to cases by any WPD employee with a legitimate business need to access these files.
These files are all subject to disclosure under KORA, disclosure under criminal and civil discovery processes, and disclosure pursuant to any other court order for disclosure.
The fact that cases are deemed “Confidential” does not divert them from the daily media briefings. However, WPD has determined that not all reports are being captured in the daily briefings due to a 10-year-old code in Crystal Reports that does not “pull” the cases that were not promptly cut. WPD is working on that issue and again, it has nothing to do with the “Confidential” file status.
The investigative records demonstrate that these cases are investigated comprehensively, just like other cases.
There is not a methodical approach to what cases get deemed “Confidential.” For example, only about 1-2 suicides, 1-2 child abuse cases, and 1-2 rapes each year are in the Confidential Files. Obviously, there are many, many more than that.
A common thread in these cases (generally) is the “sensitive” nature of the information. These files contain all the investigative records, photos, audio, etc., and it is prudent to limit their access as long as they are subject to all legally-required disclosures.
Some cases do not appear especially unusual or sensitive on their face. I recognize and expect that there may be facts of which I am not aware that led to the determination to deem them “Confidential.”
This practice is similar to those by which other organizations store medical, personnel and financial records. Even within the City, no employee (except perhaps IT staff) has access to all databases. Within WPD, “IA Pro,” the Professional Standards Software, for example, is a limited access database, to protect the privacy of individuals subject to investigation.
I find that the use of this policy does not violate any ordinance, state statute or federal law.