MARION, Kan. — The police chief who led a widely criticized raid of a newspaper office in Kansas told a judge that a reporter there accessed a restaurant owner’s driving record from a state database and could not have done so without “either impersonating the victim or lying about the reasons why the record was being sought,” according to confidential court records used to obtain search warrants for the premises.
In affidavits that have not previously been reported, Marion Police Chief Gideon Cody also told a judge that the Kansas Department of Revenue had confirmed to him that Marion County Record reporter Phyllis Zorn had downloaded the private record. The documents provide the first public accounting of the evidence that was cited to justify the raid.
Zorn confirmed to The Washington Post that she downloaded the record, a process that involves entering a name, date of birth, and driver’s license number. She said she did so to verify the information she had received from a source. The newspaper’s editor and publisher, Eric Meyer, said he does not believe Zorn committed a crime. He said that the record was accessed for research purposes and that there was no intent to use it maliciously. “There is no criminal intent,” he said.
Meyer allowed for the possibility that the paper had technically crossed a line by searching the database but said that “even if it was illegal for us to do that, the police response was like bringing the SWAT team out for jaywalking.”
The Aug. 11 police raid sparked outrage among First Amendment advocates and news organizations across the nation. Officers seized computers, phones, and other records during the search, a virtually unprecedented event in recent American history. Meyer’s home also was searched, as was the home of a city council member. The Record said stress from the raid contributed to the sudden death the following day of Meyer’s 98-year-old mother, Joan, a co-owner of the newspaper.
Marion County Attorney Joel Ensey, who is the county prosecutor, on Wednesday, said that “insufficient evidence” had been used to connect the alleged crimes being investigated – the most serious of which is a felony – to the places that were searched. He asked the police to return the property seized from the newspaper. The Kansas Bureau of Investigation has said it still is examining whether the newspaper violated state law.
The raid had its origins in a dispute between the restaurant owner, Kari Newell, and her estranged husband, Ryan, according to interviews with individuals named in the affidavits and other participants.
Ryan Newell told The Post that he was upset that his wife had continued driving and had applied for a liquor license despite having lost her driver’s license in 2008 because of a drunken-driving conviction. Newell said he was also worried about the insurance risks of his wife’s driving his car without a license.
Newell said a source he would not identify gave him a screenshot of his wife’s driving record, which indicated that she did not have a valid license. He said he gave the screenshot to a friend, Pam Maag, who passed it to the council member, Ruth Herbel. Herbel also wanted to use it to block the renewal of the liquor license, according to Cody’s affidavits.
Maag told The Post she also gave the information to Zorn. Maag said she didn’t think someone with a suspended driver’s license should be eligible for a liquor license and that she had no regrets about how she handled it.
“It is what it is. Did I send the information to Phyllis and the councilwoman? I did,” Maag said.
Herbel declined to comment.
Kari Newell in recent days has been flooded with social media messages accusing her of encouraging the raid as a way to retaliate against the paper for publicizing her drunken-driving conviction. She told The Post she did not ask for anyone to conduct a raid of the paper and was distraught at the death of Meyer’s mother. “I’m heartbroken for their family,” she said.
But she said neither reporters nor anyone else had the right to use nonpublic information from her driver’s license to look up her personal information. She wants the investigation to continue into anyone who logged on to get information.
Newell confirmed that she lost her license after being convicted of drunken driving and that she drove while her license was suspended.
Cody submitted three affidavits with his applications for warrants to search Meyer’s home, the newspaper office, and Herbel’s home. Under Kansas law, the affidavits are not available to the public for 10 days after the execution of the warrants to allow the parties involved to request that they be redacted or permanently sealed.
The police chief alleged in the affidavits that evidence could be found at those locations that Zorn had committed identity theft, a felony, and computer crimes by accessing the driving record. Users of the website run by the Department of Revenue, which oversees driving licenses and penalties, must choose from a handful of reasons that they are entitled to view records, which are generally confidential under the state’s Drivers’ Privacy Protection Act.
The eligible reasons, which are listed in the affidavits, include that users are requesting their records or are licensed private investigators. The only reason that references research is statistical reports that will not disclose individuals’ personal information. There is no exception listed for media research.
In an interview, Zorn defended her actions.
“It would have been irresponsible to just take the word of someone out there,” she said. “I checked the veracity of what was sent.”
In the affidavits, Cody stated that Meyer told him in an email on Aug. 4 that the newspaper had “received a copy of someone’s private Department of Revenue records” and that the records may have been released because of police misconduct.
Three days later, Kari Newell addressed the city council and alleged that the newspaper had illegally obtained her driving record. During a call that evening, Meyer admitted to Newell that Zorn had downloaded her record and that as a result “there would be no story” about it, according to one of Cody’s affidavits.
Newell alleged that Meyer “then threatened her,” the affidavit states, warning that “if you pursue anything I will print the story and will continue to use anything I can to come at you. I will own your restaurant.”
Meyer denied that he threatened Newell but confirmed he warned her to stop publicly disparaging the newspaper. “I said, ‘Kari I don’t think it’s a good idea to be making a big fuss about this,'” he told The Post.
The Record did publish a story on Aug. 9, under Meyer’s byline, that said Newell had lost her license because of a drunken-driving conviction. The story, headlined “Restaurateur accuses paper, councilwoman,” reported on the allegations Newell made at the meeting. It said the person who provided Newell’s record to the newspaper and Herbel had “bragged about retaining ‘connections’ despite no longer working in law enforcement.”
Maag told The Post that she worked in law enforcement years ago but that that had nothing to do with how the record was obtained.
Two days after that story appeared, Cody signed affidavits saying he believed “certain contraband, fruits, instrumentalities, and evidence” of identity theft and computer crimes having been committed could be located in Meyer’s home, Herbel’s home, and the Record newsroom.
Magistrate Judge Laura E. Viar approved the applications, and the searches were carried out that day.
The Reporters Committee for Freedom of the Press and 36 news organizations, including The Post, wrote to Cody on Aug. 13 to protest the raid, which they said was “possibly in violation of federal law.”
In a brief phone interview, Cody told The Post that he felt media coverage of the search had been unfair. “This is a Fourth Amendment situation, not a First Amendment situation,” he said, referring to the constitutional measures on unreasonable searches by law enforcement and freedom of the press. Cody declined to answer additional questions.
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