Now-withdrawn affidavit in Marion County Record raid shows police ignored Kansas open records laws
The paper’s attorney rejected law enforcement's claim that the paper committed identity theft, saying a reporter conducted a legal search on the Department of Revenue’s website to verify a tip. The Marion County Attorney withdrew the search warrants last week, citing insufficient grounds for the search.
The now-withdrawn documents used to justifya search of the Marion County Record show that the Marion police chief knew a reporter was verifying the authenticity of a local business owner’s driving record by searching on the Kansas Department of Revenue’s public website — which the paper’s attorney said is legal under Kansas law.
The newspaper received a confidential tip that Kari Newell, who owns a local restaurant and catering company, was driving without a license and had a previous conviction for driving under the influence.
The paper’s publisher and owner, Eric Meyer, reported earlier this month that Newell had kicked newspaper staff out of a public forum with Kansas treasurer Jake LaTurner.
Reporter Phyllis Zorn verified the tip by conducting a driver’s record search on the Department of Revenue’s website, using Newell’s first and last name and the driver’s license number for Newell that the record had received from its source. The results showed the tip about Newell’s record was accurate.
The paper did not publish that information, but instead brought the information about Newell’s driving history to the local sheriff and police chief. Newell was seeking a liquor license for her business at an Aug. 7 city council meeting.
Law enforcement seized cell phones, computers and reporting materials from the newspaper’s office, the publisher’s home and the paper’s reporters on Friday, Aug. 11.
In the affidavits, Marion Police Chief Gabriel Cody says Newell provided him with a written statement after she said she spoke with the paper’s publisher, writing “she says that on a phone call from 08/07/2023 at or around 1901 hours, Eric Meyer admitted to her an employee of his Phyllis Zorn downloaded the private DOR record information and that is why there would be no story. She stated Eric then threatened her ‘if you say anything I will print the story and will continue to use anything I can to come at you. I will own your restaurant.’”
The Record’s attorney, Bernie Rhodes, said the paper did not want to publish the information because it didn’t want to get caught in the middle of Newell’s divorce proceedings.
“We’d understood that the source may have — I emphasize may — have received this from the estranged husband, there was apparently a dispute going on over who should get the cars,” he said. “We didn’t want to feel like we were being used in that battle."
The affidavits allege the paper and its reporters committed identity theft and unlawful use of computers by violating the Driver’s Privacy Protection Act of 1994 in their search for Newell’s record.
“Downloading the document involved either impersonating the victim or lying about the reasons why the record was being sought,” Cody wrote.
The paper’s attorney, Bernie Rhodes, cited Kansas law that says motor vehicle records are subject to open records law unless they are driver’s license photos, relate to a person’s mental or physical condition or have been expunged.
He also noted that while the U.S. Driver’s Privacy Protection Act says it’s illegal to obtain or disclose personal information from a motor vehicle record except in certain cases, personal information does not include “information on vehicular accidents, driving violations and drivers’ statuses.”
“There was no identity theft here. Nobody went to find her date of birth or social security number so they could, for example, apply for a credit card in her name,” Rhodes said. “Phyllis had to put in Kari Newell’s information because she was attempting to verify the the validity of a document that a source had provided.”
Rhodes likened the DOR search to the kinds of searches automobile insurance companies use to check a driver’s record to determine insurance rates, or the searches he might perform as an attorney if he were involved in a lawsuit over a car accident to see if the person responsible had a history of reckless driving.
“The idea that it's an unauthorized use of the computer is simply wrong, since the very purpose of the Department of Revenue website is to check people's driver's licenses,” he said. “We want, as a society, insurance companies to be able to check records because if they just assume everybody has four tickets, everybody's rates are gonna go up.”
The affidavits authorizing the searches and seizures at the paper and the publisher’s house were signed by Magistrate Judge Laura Viar on Friday, Aug. 11. They were stamped as returned — indicating the search warrants had been executed — on Aug. 14, the following Monday.
The public information officer for the Kansas Office of Judicial Administration said the court received several requests for the warrants and supporting affidavits, the first of which was filed on Aug. 11, before the warrant return had been filed with the court.
She noted that Kansas law makes it a crime to disclose a warrant exists before it's executed, which is why a time-date stamp for the paperwork showing the warrant was executed might be for the next business day after a search.
The Marion County Attorney withdrew the search warrant on Aug. 16, citing insufficient evidence to support the alleged crimes and seizures.
“The county attorney has already withdrawn it, it’s as if it no longer existed,” Rhodes said.
Rhodes said the paper is continuing to create forensic images of the six computers, three phones, two hard drives and router seized by law enforcement to determine if they were accessed while in police custody.
“Once we determine that, we know whether to add to the list of constitutional violations the illegal review of the information that was illegally seized,” he said. “It was our hope that we could come to some type of resolution with the city and the county short of a lawsuit, but that chance appears increasingly remote.”