The initial online search that spurred a raid on a Kansas paper was legal, a state agency says
By John Hanna, The Associated Press on August 21, 2023.
MARION, Kan. (AP) – The initial online search of a state website that led a central Kansas police chief to raid a local weekly newspaper was legal, a spokesperson for the agency that maintains the site said Monday, as the newspaper remains under investigation. Earlier this month, after a local restaurant owner accused the Marion County Record of illegally accessing information about her, the Marion police chief obtained warrants to search the newspaper’s offices and the home of its publisher, as well as the home of a City Council member who had some of the same information as the newspaper. The police chief led the Aug. 11 raids and said in the affidavits used to obtain the warrants that he had probable cause to believe that the newspaper and the City Council member had violated state laws against identity theft or computer crimes. Both City Council member Ruth Herbel and the newspaper have said they received a copy of a document about the status of the restaurant owner’s license without soliciting it. The document disclosed the restaurant’s license number and her date of birth, information required to check the status of a person’s license online and gain access to a more complete driving record. The police chief maintains they broke state laws to do that, while the newspaper and Herbel’s attorneys say they didn’t. The raid on the Record put it and its hometown of about 1,900 residents in the center of a debate about press freedoms protected by the First Amendment to the U.S. Constitution and Kansas’ Bill of Rights. It also exposed divisions in the town over local politics and the newspaper’s coverage of the community and put an intense spotlight on Police Chief Gideon Cody. “As far as Chief Cody goes, he can take his high horse he brought into this community and giddy-up on out of town,” said Darvin Markley, a Marion resident, said during a Monday afternoon City Council meeting. “The man needs to go. He needs to be fired.” While Herbel said she agrees with Markley, other City Council members declined to comment. Mike Powers, a retired district court judge who is the only candidate for mayor this fall, said it’s premature to make any judgments. Herbel, the city’s vice mayor, presided over the City Council’s meeting Monday, its first since the raids. It lasted less than an hour, and Herbel announced that council members would not discuss the raids – something its agenda already had said in an all-caps statement in red followed by 47 exclamation points. She said the council will address the raids in a future meeting. Cody did not attend the meeting and did not respond to email and cellphone messages seeking a response to Markley’s comments. The meeting came after Kansas Department of Revenue spokesperson Zack Denney said it’s legal to access the driver’s license database online to check the status of a person’s license using information obtained independently. The department’s Division of Vehicles issues licenses. “The website is public facing, and anyone can use it,” he said. The Department of Revenue website allows a searcher to see whether a person has a valid driver’s license and to see a list of documents related to that person’s driving record. Searchers can go further: The site allows them to download documents or buy a copy of a driving record for $16.70. But they also need a person’s driver’s license number and date of birth, and they are asked to provide an address and phone number. The affidavit to search the newspaper’s offices noted that when a person submits an online request for someone’s driving record, it lists 13 circumstances in which it is legal to obtain it. They include a person is seeking their own record or a business seeking it to verify personal information to help collect a debt. The last item says: “I will use the information requested in a manner that is specifically authorized by Kansas law and is related to the operation of a motor vehicle or public safety.” Record Editor and Publisher Eric Meyer said Monday that reporter Phyllis Zorn did not download or purchase any documents when at the site. He said the newspaper plans to file a lawsuit over the raid of its offices and his home. “If they thought they were intimidating us, they were wrong,” Meyer said. The Kansas Bureau of Investigation continues to probe the newspaper’s actions. The KBI reports to state Attorney General Kris Kobach, a Republican, while the Department of Revenue is under Democratic Gov. Laura Kelly’s authority. Police seized computers, personal cellphones and a router from the newspaper and the publisher’s home and a laptop and iPhone from Herbel. Meyer lived with his 98-year-old mother, Joan, the paper’s co-owner, and blames the stress of the raid for her death the day after the raids. As of Monday, cellphones belonging to the newspaper’s staff, two reporters’ computer towers and the newspaper’s main server were back in its offices, while it was still waiting for the return of four computers, two removable hard drives and a router. Those items remained with a computer forensics audit firm hired by the newspaper’s attorney, as did Herbel’s laptop and iPhone. The auditing firm was checking the equipment for signs that materials were accessed or copied. Meyer said the paper believes police started to copy the hard drive of one computer in the newspaper’s offices but stopped and seized the equipment when that proved too slow. The Record also posted video from surveillance camera at Meyer’s home. In it, his mother angrily declares, “This is my house!” and swears at individual officers. Legal experts believe the police raid on the newspaper violated a federal privacy law or a state law shielding journalists from having to identify sources or turn over unpublished material to law enforcement. Meyer has noted that among the items seized were a computer tower and personal cellphone of a reporter who was uninvolved in the dispute with the local restaurant owner – but who had been investigating why Cody left a Kansas City, Missouri, police captain’s job in April before becoming Marion police chief. The newspaper is known for its aggressive coverage of its community, set among rolling hills that once were part of a vast sea of tall prairie grass. Some of the town’s residents believe the newspaper is too critical, a suggestion Meyer dismisses. “I know it’s a well-run paper,” Powers said. “If you read the editorials, every week is a lecture about how horrible we are.” Powers and Markley had an animated discussion about local politics in the hallway outside its meeting room before the meeting and again when the council had a brief closed session to talk to the city’s attorney about a matter unrelated to the raids. “The world is watching Marion,” Markley told the City Council. “There has to be accountability for those involved.” ___ Associated Press writers Heather Hollingsworth in Mission, Kansas, and Jim Salter in O’Fallon, Missouri, contributed to this report. ___ Follow John Hanna on Twitter: https://twitter.com/apjdhanna ___ The Associated Press receives support from several private foundations to enhance its explanatory coverage of elections and democracy. See more about AP’s democracy initiative here. 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