KBI takes over
The Kansas Bureau of Investigation has taken over a case that led to police and sheriff’s deputies seizing computer equipment and cell phones Friday morning from the Record office, the home of its co-owners, and the home of Marion’s vice mayor.
Although Marion Police Chief Gideon Cody applied for search warrants for the raids — condemned by the Record’s attorney and organizations such as Reporters Committee for Freedom of the Press as illegal — the KBI confirmed that as of Monday, it was serving as the lead agency.
“As we transition, we will review prior steps taken and work to determine how best to proceed with the case,” KBI spokesperson Melissa Underwood wrote in an emailed statement. “Once our thorough investigation concludes, we will forward all investigative facts to the prosecutor for review.”
That email followed a statement the KBI released Sunday saying that Marion police and county attorney Joel Ensey asked the agency to “join an investigation into allegations of illegal access and dissemination of confidential criminal justice information. The KBI assigned an agent to this case last Tuesday (Aug. 8), and has been assisting since that time. The KBI agent did not apply for the search warrants in question, and he was not present when the warrants were served.
“Director Mattivi believes very strongly that freedom of the press is a vanguard of American democracy. Without free speech and a free press, our society is not likely to see appropriate accountability of public officials. But another principle of our free society is equal application of the law.
“No one is above the law, whether a public official or a representative of the media.”
Police have accused Record staff of illegally accessing and disseminating Marion restaurateur Kari Newell’s confidential driving record information. The paper rigorously denies doing so, saying it only was trying to confirm the authenticity of a document sent independently to a reporter via social media and didn’t plan to write a story about her license being suspended due to a 2008 DUI.
It didn’t release the document to anyone, but Newell accused the paper at a city council meeting Aug. 7 of providing the information to vice mayor Ruth Herbel. She also accused Herbel of sharing it. Herbel said she shared it only with city administrator Brogan Jones because Newell was seeking endorsement of a catering liquor license at the meeting.
Herbel received the document from the same source as the newspaper.
Two Record reporters were outside at the back door of the newspaper’s 3rd St. building when Cody and other law enforcement officials arrived Friday morning.
Cody asked whether anyone else was in the building. The newspaper’s office manager was at her desk.
Cody handed Record reporter Deb Gruver a copy of a search warrant. After Gruver said she needed to call editor and publisher Eric Meyer, Cody forcibly yanked her personal cell phone out of her hand, reinjuring one of her fingers, which previously had been dislocated. Gruver filed a report about the incident with the KBI.
Cody also confiscated Phyllis Zorn’s phone.
Police would not let staff members inside the building, forcing them to stay outside for hours during a heat advisory. They weren’t allowed to answer or make any calls.
Police told office manager Cheri Bentz and reporters Gruver and Zorn their Miranda rights. In the case of Gruver, Cody asked officer Zach Hudlin to recite them from a business-sized card because he wasn’t wearing his glasses.
Officers seized computer equipment, including the newspaper’s file server.
At the same time police were raiding the Record office, they also raided the home Joan Meyer, the newspaper’s 98-year-old co-owner. She tearfully watched during the raid as police not only carted away her computer and a router used by an Alexa smart speaker but also dug through her son Eric’s personal bank and investment statements to photograph them. Electronic cords were left in a jumbled pile on her floor.
Joan Meyer died the next day.
Law enforcement also seized a computer and cell phone from Herbel’s home.
Bernie Rhodes, representing the Record, castigated Cody in a letter he sent to him Sunday and then forwarded to the KBI on Monday.
He offered Cody “an opportunity to mitigate my client’s damages from the illegal searches you personally authorized, directed, and conducted on Friday.
“First, as you were told on Friday, the computers, cell phones and other items you illegally seized contain the identity of confidential sources, as well as information provided by those confidential sources,” Rhodes wrote.
“This information is protected by both federal and state law.
“Accordingly, demand is made that you not review any information on those devices, or any other information you illegally seized, so that you do not willfully violate that privilege.
“Second, Kansas law recognizes a journalist’s privilege not just for information received from confidential sources, but for ‘any information gathered, received or processed by a journalist, whether or not such information is actually published, and whether or not related information has been disseminated, and includes, but is not limited to, all notes, outtakes, photographs, tapes and other recordings or other data of whatever sort that is gathered by a journalist in the process of gathering, receiving or processing information for communication to the public.”
The Record is entitled to a court hearing before “you review any information you illegally seized,” Rhodes wrote.
Rhodes referenced a post Cody made on the police department’s Facebook page “in which you mistakenly suggest the federal Privacy Protection Act did not bar your illegal search because you had ‘reason to believe the journalist [was taking part in the underlying wrongdoing.
“From the face of the subpoena, it appears you told the magistrate you were investigating ‘identity theft’ and ‘unlawful acts concerning computers.’ Because it is patently clear no such crimes occurred, it is impossible for you to have met the heightened standard of ‘probable cause.’
“As Joan Meyer said less than 24 hours before she died, ‘These are Hitler tactics.’ ” She is right. Your personal decision to treat the local newspaper as a drug cartel or a street gang offends the constitutional protections the founding fathers gave the free press.
“I can assure you that the Record will take every step to obtain relief for the damages your heavy-handed actions have already caused my client. As I stated at the beginning, this letter offers you an opportunity to mitigate those damages going forward.
“If I were you, I would jump at this opportunity.”