A lawyer for the Marion County Record alleges that Kansas authorities involved in the raid of the newspaper secretly copied data from at least one of its computers—and failed to hand it over with other seized evidence.
Attorney Bernie Rhodes told The Daily Beast that the Marion County Sheriff's Office “confirmed the fact they copied 17 Gigs of data from the newsroom computer system—and they still have it.” The retention of the data was first reported by the Kansas Reflector.
The computer system was among a slew of property taken during the Aug. 11 raid at the Record, the home of publisher Eric Meyer, and the home of Vice Mayor Ruth Herbel.
Amid national outcry, Marion County Attorney Joel Ensey last week withdrew the search warrant that led to the raids after concluding that “insufficient evidence exists to establish a legally sufficient nexus between the alleged crime and the places searched and the items seized.” Affidavits obtained by The Daily Beast on Sunday confirmed that the raids stemmed from an investigation into identity theft after a confidential source leaked sensitive documents to one of the Record reporters about local restaurateur Kari Newell.
Rhodes claims that while his clients’ physical property was returned, the sheriff’s office did not hand over data from one of the computers they allegedly copied. The lawyer is now planning to ask a judge to hold Sheriff Jeff Soyez in contempt of court unless there is a resolution by Thursday.
“We are working on a motion to file with the court requiring the sheriff to provide us a copy and to destroy their copies,” Rhodes added.
A spokesperson for the Kansas Bureau of Investigation, which is now the lead investigating agency, told The Daily Beast that it is “aware of the issue” and that they actually brought it to the “attention of the Marion County Record’s attorney last week.”
“We expect the Sheriff’s Office and the newspaper’s attorney to resolve the situation soon,” the spokesperson added. The sheriff’s office did not respond to a request for comment.
In a Wednesday letter to Marion County counselor Bradley Jantz, Rhodes says that after District Judge Ben Sexton ordered that the seized items be returned on Aug. 16, he immediately sent his forensic examiner to the sheriff’s office to retrieve the items. (The Marion County Police Department was the lead agency in the raid, but the sheriff’s office became the custodian of the seized items.)
Rhodes claims that Undersheriff Larry Starkey “transferred custody of what he represented were the items seized” to the forensic examiner before the two signed a “Data Forensic Chain of Custody Form” and a “Property Receipt/Return Form,” which provided an inventory list of the seized items.
But Rhodes said that when he went to review the search warrant and inventories the court has since released, he realized that something described as “OS Triage Digital Data” was never released to his forensic examiner.
“While the apparent alteration of the inventory list raises serious questions, what is clear is that item 9 on the inventory posted by the Court has not been ‘released and returned,’ as the Court ordered,” the lawyer wrote in the letter. “It further appears that during—or after—the raid someone used this drive to copy or clone data from one or more computers owned by the Record.”
The lawyer added that the USB drive where the seized data is being stored belongs to the sheriff’s office and was used in other investigations—and therefore has not been released to the newspaper. He added that because the drive remains at the sheriff’s office, authorities still have access to the newspaper’s data, which “is both constitutionally-protected and protected by federal and state law.” Rhodes added that he attempted to contact the county counselor to report the issue, but his calls have not been returned.
“This access is illegal,” he added. “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.”