The initial online search spurring a raid on a Kansas paper was legal, state agency says

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 also accessed the driver’s license database.

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 the City Council member and the newspaper have said they received a copy of the 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.

Department of Revenue spokesperson Zack Denney said it’s legal to access the driver’s license database online using information obtained independently. The department’s Division of Vehicles issues licenses.

“That’s legal,” he said. “The website is public facing, and anyone can use it.”

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.

The City Council in Marion, about 150 miles (241 kilometers) southwest of Kansas City, Missouri, was scheduled Monday afternoon to have its first regular meeting since the raids. The member whose home was raided, Ruth Herbel, was elected in 2019 and is the city’s vice mayor.

The agenda says, in red: “COUNCIL WILL NOT COMMENT ON THE ONGOING CRIMINAL INVESTIGATION AT THIS MEETING!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!”

But the agenda also includes a place for public comments, with speakers limited to three minutes.

Police seized computers, personal cellphones and a router from the newspaper and the publisher’s home and a laptop and iPhone from Herbel. Record Editor and Publisher Eric Meyer lived with his 98-year-old mother, Joan Meyer, and blames the stress of the raid for her death the day after the raids.

The seized equipment was turned over to a computer forensics auditing firm hired by the newspaper’s attorney last week after the county attorney concluded there wasn’t enough evidence to justify its seizure. The auditor is checking the equipment to see whether materials were accessed or copied.

The Department of Revenue website allows a person to buy a driving record for $16.70 a copy — and that requires someone to again enter the person’s driver’s license number and date of birth while providing a name, address and phone number. Meyer said Zorn used her own information and did not impersonate the restaurant owner, Kari Newell.

The affidavit to search the newspaper’s offices noted that when a person submits a 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.”

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.

“This isn’t going to go away. And it shouldn’t,” said Genelle Belmas, an associate journalism professor at the University of Kansas. “There should be repercussions to this sort of wanton trampling of two very important laws, one state, one fed.”

Newell accused the newspaper at the council’s last meeting Aug. 7 of violating her privacy and illegally disseminating personal information about her, and she also disclosed a drunken driving offense in her past. According to the affidavits, she told Cody that she did not authorize anyone to access her information.

Newell also accused the newspaper of giving Herbel private information about her. Herbel, who has referred most questions to her attorney, said that was a “blatant lie.” Meyer also told the council that the newspaper did not give information to Herbel and noted it did not publish the information it obtained.

Herbel passed along her information about Newell to City Administrator Brogan Jones three days before the Council’s Aug. 7 vote to approve Newell’s liquor license in an effort to prevent her from getting one, according to the affidavit for the search on Herbel’s home. Jones then told Mayor David Mayfield about the information in an email, adding, “We as a city need to stay out of this ‘hear say’ or whatever else you want to call it.”

Herbel’s attorney, Drew Goodwin, said Herbel was attending to her official duties. He called the raid on her home “an egregious breach of the public trust.”

“I realize a lot of the focus is on journalists’ privileges here, and that’s, of course, appropriate because that’s at the heart of the First Amendment,” Goodwin said. “But the fact that my client — an elected official — got swept up in this constitutional violation and had her own rights violated in the process, it’s beyond the pale.”