Kansas Attorney General Opinion 1992-027

ROBERT T. STEPHAN
ATTORNEY GENERAL February 19, 1992
ATTORNEY GENERAL OPINION NO. 92-27
Mike Ward
Butler County Attorney
Jail-Judicial Bldg.
El Dorado, Kansas 67042
Re: Crimes and Punishment -- Sentencing --
Expungement; Release of Records to Victim
Public Records, Documents and Information --
Records Open to Public -- Certain Records Not
Required to be Open; Expungement of Criminal
Record
Synopsis: Records previously closed pursuant to a valid
expungement order may not be disclosed to the
victim, or anyone else, unless such person
qualifies for access pursuant to K.S.A. 1991
Supp. 21-4619(i). However, as they are not
records of arrest, conviction or incarceration
related to the expunged crime, criminal
investigation files may be discretionarily opened
pursuant to K.S.A. 1991 Supp. 45-221(a)(10) unless
mandatorily closed pursuant to other authority.
Cited herein: K.S.A. 1991 Supp. 21-4619; K.S.A.
45-215; 45-217; K.S.A. 1991 Supp. 45-221.

Dear Mr. Ward:
As Butler county attorney you request our opinion on the
release of information to a victim of child abuse. You inform
us that the information requested by the former minor concerns
a conviction which occurred eleven years ago, but which was
expunged in 1985 prior to the statutory amendment prohibiting
expungement of child sexual abuse convictions. You indicate
that the requested information includes transcripts of
hearings, copies of police reports, journal entries, etc. You
state that you would like to provide information to the
victim, however, you ask whether K.S.A. 1991 Supp.
21-4619(i) prohibits such release.
K.S.A. 45-215 et seq. set forth the Kansas open records
act (KORA), and generally require that all documents meeting
the definition of a public record be open unless otherwise
permissibly or mandatorily closed by law. However, the
definition of public agency set forth in the KORA excludes
applicability of this act to any municipal judge, judge of the
district court, judge of the court of appeals or justice of
the supreme court. See K.S.A. 45-217(e)(2)(B). In
addition, K.S.A. 1991 Supp. 45-221(a)(1) recognizes that
statutory authority outside the KORA may operate to close
specific public records. K.S.A. 1991 Supp. 21-4619(i)
represents such closure and provides in pertinent part:
"Whenever the record of any conviction has
been expunged under the provisions of this
section or under the provisions of any
other existing or former statute, the
custodian of the records of arrest,
conviction and incarceration relating to
that crime shall not disclose the
existence of such records, except when
requested by:. . . ." (Emphasis added)
The exceptions following this language do not permit release
upon the request of the victim. However, K.S.A. 1991 Supp.
21 - 4619(i)(5) authorizes release to persons entitled to such
information pursuant to the terms of the expungement order.
We do not have information concerning the order in question,
and thus, must assume it does not provide the victim with
access to expunged records.

As you note, current expungement authority does not permit
expungement of certain child sexual abuse convictions.
See K.S.A. 1991 Supp. 21-4619(c). Thus, had expungement
of the crime in question been sought following enactment of
K.S.A. 1991 Supp. 21-4619(c), it would have been denied and
the records in question would not be closed pursuant to K.S.A.
1991 Supp. 21-4619(i). However, K.S.A. 1991 Supp.
21-4619(i) recognizes that expungement may have occurred
pursuant to former statutory authority. Because such
expungement was previously lawful, records sealed pursuant
to former expungement authority nevertheless remain subject
to the restrictions set forth at K.S.A. 1991 Supp.
21-4619(i).
K.S.A. 1991 Supp. 21-4619(f) sets forth certain
circumstances wherein the fact that the expunged conviction
occurred may be disclosed or used, e.g. (f)(3) allows the
court order to specify circumstances under which the
conviction may be disclosed. However, it is records related
to the conviction, and not the fact of the conviction itself,
that have been requested. To expunge is defined as "to
destroy; blot out; obliterate; erase; efface designedly;
strike out wholly. The act of physically destroying
information - including criminal records - in files,
computers, or other depositories." Blacks Law Dictionary 522
(5th ed. 1979). Some laws concerning expungement
contemplate the total destruction of all records relating to
the crime. See People v. Wright, 598 P.2d 157 (Colo.
1979); 21 Am.Jur.2d Criminal Law, § 1021 (1981); 62A
Am.Jur.2d Privacy § 206 (1990. However, Kansas provisions
concerning expungement merely close the records concerning
conviction, thus permitting limited access pursuant to the
terms of K.S.A. 1991 Supp. 21-4619(i). The records closed
upon expungement are described as ". . . records of arrest,
conviction and incarceration relating to the crime. . . ."
You indicate that the requested information includes hearing
transcripts, police reports and journal entries. Some of
these records are generally closed when expungement of a
conviction occurs. Journal entries and hearing transcripts
are records clearly relating to the conviction of a crime.
Police investigation records generally do not relate to or
contain information concerning records of arrest,
incarceration or conviction. Thus, such records may be
discretionarily opened or closed pursuant to K.S.A. 1991
Supp. 45-221(a)(10).

Thus, it is our opinion that records previously closed
pursuant to a valid expungement order may not be disclosed
to the victim, or anyone else, unless such person qualifies
for access pursuant to K.S.A. 1991 Supp. 21-4619(i).
However, records not concerning the conviction, arrest or
incarceration on the expunged crime may be opened unless
mandatorily closed pursuant to other authority.
Very truly yours,
ROBERT T. STEPHAN
ATTORNEY GENERAL OF KANSAS
Theresa Marcel Nuckolls
Assistant Attorney General
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