Guest column
Sunshine should clear Record
From the Kansas Reflector
Welcome to Sunshine Week, an annual opportunity to celebrate the public’s right to know and promote the need for government transparency.
Sadly, there’s not much transparency to celebrate these days when it comes to resolving questions surrounding the raids that took place in Marion on Aug. 11, when the newsroom of the Marion County Record and two private residences were searched at the beginning of a saga that is still playing out in the national news.
No charges have been filed to date, and seven months later, the public, along with journalists industry-wide, are left wondering whether law enforcement, or, crucially, even Record staff, will face criminal or administrative consequences for their roles in the events of that fateful day.
This ongoing ambiguity, stemming from a lack of transparency, leaves an inescapable statewide chilling effect on journalists’ First Amendment rights.
“We would like to think that something like this would not happen with the law enforcement agencies in Douglas County,” said Mackenzie Clark, reporter and founder of the Lawrence Times. “But I’m sure the Marion County Record folks probably felt the same way before the raid.”
The most recent revelations came in December of last year and did not necessarily help journalists sleep easier.
That’s when the public learned that agents from the Colorado Bureau of Investigation had been in Marion, and that Riley County Attorney Barry Wilkerson was involved in the investigation.
At that time, neither Wilkerson nor anyone else in law enforcement could confirm whether the journalists would face charges, leaving open the possibility that such charges could, indeed, be filed.
Four months later, the public remains in the dark. When contacted last week, Wilkerson said he believes CBI agents are nearly concluded with their work, which he said has produced an unexpectedly high volume of investigative reports.
He also revealed the faintest outline of a timeline, indicating he would be travelling to Colorado at the end of March to review the CBI’s findings in person before making any decisions.
“Just trying to be careful. Tie up every loose end,” Wilkerson said.
But he would not confirm whether law enforcement officers, journalists, or both were being investigated, perpetuating a chilling status quo.
And although Wilkerson was opaque, his transparency far outstripped that of either the offices of the Kansas attorney general or the Marion County attorney. Neither responded to requests for comment for this column.
Eric Meyer, publisher of the Marion County Record, is at a loss for what’s taking so long.
“Our exoneration should have been, as TV commercials say, the easiest decision in the history of decisions,” Meyer said. “Instead, KBI continues to ‘investigate’ whether we — not just the bullies who raided our office and home — might have committed a crime.”
Even though he hasn’t been charged, Meyer has felt the chilling effects of the raid in the form of employee attrition, which has led to difficult editorial decisions.
Since Aug. 11, his reporters “fear they might be stopped on some pretext and harassed.”
“We’ve been unable to attract replacements,” he said, “leaving us so overworked and fearful of consequences that we haven’t been able to pursue or have soft-pedaled a host of stories about governmental abuse.”
“The only hope” for changing the current chilling climate, he said, “would be for state agencies to stand up for justice, but instead they unconscionably seem to have been dragging their feet.”
Without support from state actors, the chilling effect of the raid has spread well beyond Marion.
“Since Aug. 11, 2023, I have heard from numerous members asking if a raid could happen to them because they were looking into a local public official,” said Emily Bradbury, executive director of the Kansas Press Association.
Meyer likewise worries about newsrooms across the state, “where people without extensive experience or working for companies that care only about their bottom line might shy away from anything controversial for fear that what happened to us might happen to them.”
Despite plying their trade amid the chill emanating from law enforcement’s response to the Marion raids, journalists persevere.
“We will keep pursuing and utilizing public records to the fullest extent in order to seek the truth and report it,” Clark said. “We owe it to our readers and to our colleagues across the state to continue reporting fearlessly.”
But journalists should not feel as if they are taking an unreasonable risk just to do their jobs, a feeling perpetuated every day that goes by without resolution on the raids.
“This is not a partisan issue,” Bradbury emphasized. “Anyone who values limiting government overreach, which I believe most Americans do, should support full transparency surrounding the Record raid.
“Transparency protects good public servants as well as the public. As soon as possible, law enforcement should take an obvious step toward transparency and announce that no journalists subjected to the Record raid will be charged.”
There’s no time like the present, especially when it’s Sunshine Week, for law enforcement to make good on that unquestionably reasonable ask.
Max Kautsch is an attorney whose practice focuses on First Amendment rights and open government. He serves as legal hotline attorney for the Kansas and Nebraska press and broadcater associations, is president of the Kansas Coalition for Open Government, and is an adjunct professor at the University of Kansas School of Law.