Wrangling needed to get secretly seized newspaper data
An agreement to have data that was not disclosed as being illegally copied from a Marion County Record computer turned over to the Record’s lawyer ultimately took four days and four lawyers to sign.
County attorney Joel Ensey originally agreed Thursday to sign off on a joint motion to have data transferred from the data drive it was stored on and given to the Record’s lawyer, Bernie Rhodes, with the original USB drive destroyed.
Ensey changed his mind Friday and decided he wanted the drive given to Chief Judge Ben Sexton instead, but Sexton said he would not accept the drive without a signed motion to do so.
After initial discussions Thursday, Sheriff Jeff Soyez hired a lawyer, Jeffrey Kuhlman of Great Bend, to deal with the sheriff’s department’s interests.
According to Rhodes, Ensey used the new lawyer as a reason for not signing even though Kuhlman denied that he had anything to do with the previous agreement and said it was not his fault Ensey had not signed off.
“I’ve been hired by the county,” Kuhlman said. “I’m not involved in this agreement. I’m not going to comment further.”
Kuhlman’s name, however, appears as “Attorney for Marion Co. Sheriff Dept.” on a motion finally signed Monday and filed with the court at 4:45 p.m.
The motion states that data on the drive be provided to Rhodes and the original drive destroyed.
Also appearing on the motion are the names of Ensey, Rhodes, and Jennifer Hill, an attorney for the city of Marion.
Photos taken by law enforcement during their search of the Record office and the home of Eric and Joan Meyer also are to be given to Rhodes along with copies of all photographs taken of items seized after the search.
Marion police and the sheriff’s officers were ordered Aug. 16 to return all items seized during raids Aug. 11 at the Record and the home of its owners. It took a threat from Rhodes to have Soyez held in contempt to forge the initial agreement to return the data.
Rhodes discovered that the USB drive had not been included with other items seized on a list of seized items provided to the Record. It had been added as a ninth item after a signed and dated inventory was given to the newspaper.
A USB drive was used to copy data from a Record computer and from other computers networked to it. The copied material was not handed over Aug. 16.
“Because that drive is still in the sheriff’s office’s custody, that means the sheriff still has access to the Marion County Record’s data — data that is both constitutionally protected and protected by federal and state law,” Rhodes wrote in a letter Aug. 23 to county counsel Brad Jantz. “This access is illegal. It also clearly violates the district court’s Aug. 16 order.”
Rhodes said that he had called Jantz’s cell phone Monday and Tuesday but couldn’t leave a message because Jantz’s voice mail was full.
He also called Jantz’s office both days and left messages with a receptionist.
“Despite the receptionist telling me she would let you know I called, you never called me back,” Rhodes wrote. “The sheriff’s failure to comply with the district court’s order is inexcusable, and I will not stand by and wait for you to choose to return my many calls.
“Unless you and I are able to come to a satisfactory agreement by the end of the day Thursday on disposition of this — and any other items not previously released and returned — I will file a motion to hold the sheriff in contempt of court for his failure to comply with the district court’s order.”
Ensey was copied on the letter. Although Jantz still didn’t respond, Rhodes, Ensey, Undersheriff Larry Starkey, and deputy Aaron Christner met Thursday morning to discuss the matter.
No explanation was given for why the data had not been listed on the inventory originally supplied to the Record.
The reason the sheriff’s office cited for had not returning the data was that the USB drive that had been used to copy 17 gigabytes of Record data also contained data from other investigations, Rhodes said.
The sheriff’s office wanted a court order to delete the data so as not to “destroy evidence,” Rhodes said. The order was issued Tuesday afternoon.
Authorities’ explanations of how the copying took place led Meyer to believe that an archive of 15 years of confidential email sent to and received by the Record might have been scanned along with a similarly large archive of published news stories but not confidential statements and documents from sources concerned about the hiring of Police Chief Gideon Cody, who requested the search.
“I certainly understand Judge Sexton’s position,” Meyer said Saturday. “It does seem, however, that this is being dragged out unnecessarily, seemingly by the county attorney.”