In most states, getting records about crimes that law enforcement has investigated is easy: Make a request and the authorities turn them over.
In Kansas, it’s usually not that easy.
The Legislature closed those records to the public more than 30 years ago, and if members of the public want incident reports and investigative files, they typically have to sue to get them. The cases can be expensive: Some have cost $25,000 or more.
So media law experts found it “amazing” when they learned that Montgomery County Sheriff Robert “Bobby” Dierks released investigative files from 1998 last month with just a records request.
“That is unusual,” said Mike Merriam, veteran media lawyer who works with the Kansas Press Association. “They have denied releasing records routinely over and over and over again.”
The files contained important information for the hotly contested gubernatorial race: Gov. Sam Brownback’s Democratic challenger, Paul Davis, of Lawrence, had been in a strip club years ago during a drug raid.
And before giving the records to the newspaper that had requested them, a county official alerted Brownback’s campaign. He wanted to “help out” a Republican, he said.
Dierks did not return phone calls seeking comment, but Montgomery County Attorney Larry Markle, a Republican, who advised the sheriff to release the records, agreed to an interview. County attorneys in Kansas are considered the custodian of records and often advise government officials on open-records issues.
“It was an economic decision,” Markle said, acknowledging the sheriff’s standard response to a records request is “no.” A lawsuit would have been expensive to defend, and the sheriff would probably have lost, Markle said he told Dierks.
Markle said that a rumor started about a month ago about Davis and the strip club when a man — whom he would not name — remembered the incident from 16 years ago and started talking about it.
“This man is the most apolitical person on the planet,” Markle said. “I will never mention that man’s name because he doesn’t need to be talking to reporters.”
But Coffeyville is a small community, about 10,000 people, and soon “everyone was talking” about the 16-year-old drug raid, he said.
Corey Kneedler is both editor and reporter at the Coffeyville Journal.
Kneedler said he got a call Sept. 15 from a man he knew, a person who he believed did not have a political agenda. The man told Kneedler to check clips from 1998 for a story about the drug raid and said Davis was at the club the night of the raid.
Kneedler did, but the story listed only people who were arrested, so Davis’ name was not in the story. In an unusual move, Kneedler decided to file a records request.
“What’s funny, I have never requested records before,” said Kneedler, who has been at the newspaper for three years. “This was the first time.”
When the sheriff received the request, he immediately took it to Markle, the county attorney.
When Markle learned about the newspaper request, Markle said he called the Brownback campaign and told them about the strip-club raid. Timothy Keck, chief of staff for Lt. Gov. Jeff Colyer, then also filed a request for the records.
Markle said he called the campaign because the sheriff was going to release the records, he is a Republican, and he was helping out a Republican.
“We knew 100 percent we were going to get sued … so I called the Republican Party,” Markle said.
Markle said he didn’t know anyone who planned to file a lawsuit at the time he advised the sheriff to release the records, but he was sure once media outlets somehow learned about the case, they would sue to get the records.
“We knew multiple sources would go further if we didn’t release them,” Markle said. “You have to ask are you going to spend county money defending a lawsuit that you know that you are going to lose?”
Within 48 hours, the sheriff located the 16-year-old, 150-page file, read it, redacted passages, made copies and mailed them to the newspaper and to Brownback’s campaign.
To understand how the records were released so easily is to understand how serious these campaigns are, said Bob Beatty, political science professor at Washburn University.
“We are talking not just millions of dollars and people’s jobs but serious vested interests on public policy,” Beatty said. “In these modern campaigns, campaign staff is poring through records.”
Campaigns budget money for “opposition research.” People are hired who spend hours quietly researching all kinds of records, police reports, court records and financial dealings to dig up dirt on candidates.
They then turn over that information to a reporter or others who will get it publicized.
The silver lining could be that in the strip club case, the county attorney unwittingly set a new legal precedent that law enforcement should make police files more accessible to the public in the future, said Mike Kautsch, a Kansas University law professor and former journalism school dean.
“This is a fine precedent,” he said. “This is a model of how the law is intended to work. The records custodian exercised discretion in favor of openness, and the requester doesn’t have to take legal action to be informed.”
The battle over police records has been ongoing since the late 1970s, when the Legislature closed them because a Topeka newspaper reported the names of two fugitives. Law enforcement blamed the newspaper because one of the men was never found.
This year the Legislature agreed to open police-arrest affidavits and search-warrant affidavits to the public, but did not address incident and investigative reports. Open-records advocates, including the group that represents news organizations, will ask the Legislature next year to open those records, too.
The strip club case
The Coffeyville Journal does not have a website, but the online political news site Politico and others picked up the Davis story in late September.
According to the Politico report, which cited the Coffeyville Journal, Davis was seen and identified by undercover police officers with a woman in the VIP room of a strip club in Coffeyville called “Secrets,” also known as Club 169, on Aug. 5, 1998. Davis was 26 at the time, unmarried, and had just begun his law practice a few months earlier.
A few minutes after midnight on Aug. 5, police executed a search warrant after an informant said he had purchased drugs from the club owner, according to the story. The officer then reported that the male in the VIP room identified himself as a Lawrence attorney who represented the owner of the club, according to Politico.
In a statement, Davis did not deny that he was there, but said he did nothing illegal and had been in the wrong place at the wrong time.