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Requesting Information from SRS

Kline is accused of misleading the Kansas state agency responsible for maintaining reports of child rape.

While Phill Kline was Attorney General of Kansas, the Sebelius Administration held key statistical reports regarding the failure to report child rape. Kansas law required those aware of a child rape to report the crime to the state’s child welfare office, the department of Social and Rehabilitation Services (“SRS”). At the same time, abortion law required abortion providers to report abortions to the Kansas Department of Health and Human Services (“KDHE”). Governor Sebelius ran both of the departments.

KDHE was required by law to publish public annual reports detailing statistics of abortions in Kansas. These yearly reports revealed that on average 75 children fourteen years of age and younger had abortions in Kansas. Young and pregnant, these children were by statutory definition victims of crime. Were these crimes being reported as required by Kansas law? By comparing the reports held by SRS and by KDHE, Kline’s investigators could determine whether the abortion providers were also reporting child rape. They went to SRS to see .

The initial information SRS gave the investigators was later proven to be false . Once investigators obtained that information, they recognized more information was required, and so they made a second request to SRS. This time SRS refused the request entirely, and demanded a written explanation.

Although not required to by law, Phill Kline’s chief of staff, Eric Rucker, gave SRS a written explanation for the request . This explanation included a statement that Kline’s office was investigating the failure to report child sexual abuse.

After receiving the letter, SRS wrote back that it refused to cooperate any further unless Kline’s office provided a "thorough and specific explanation of the factual information" supporting the investigation, including identifying the targets of the investigation.

There has never been a requirement that investigators reveal such information to anyone who asks, and there was no rule requiring the Attorney General to reveal details of his investigation to the department. Kline didn’t work for Sebelius. He was an independently elected constitutional officer in Kansas. Revealing the factual basis of the investigation could jeopardize the investigation , tip off criminals and scare off witnesses. Kline’s office naturally refused to comply with the demand.

Kline’s investigators were also aware of the close ties between Sebelius, Planned Parenthood and Dr. Tiller. They were concerned Sebelius would tip off the investigation targets and that evidence might be destroyed. Instead of providing the information to SRS, Kline’s lead prosecutor presented the evidence to Shawnee County District Court Judge Richard Anderson who decided to subpoena the records from SRS.

SRS took months to fully comply with the subpoena. Moreover, the agency again provided false data. Prior to the subpoena SRS claimed that there were only 1,042 reports of child sexual abuse. When responding to the subpoena SRS provided information relating to over 20,000 reports of sexual abuse. It took Kline’s investigators months to sort through the mountain of paperwork, costing precious time in the investigation.

This review revealed that SRS had produced more than 12,000 duplicate reports; the Sebelius Administration was forcing Kline’s investigators to look for a needle in a haystack. Nevertheless, the analysis revealed a shocking failure to report child sexual abuse. The records demonstrated that during a time when 166 abortions were performed on children 13 years old and younger that Dr. Tiller and Planned Parenthood had each only reported one case of child sexual abuse.

This evidence, combined with evidence from confidential sources, provided compelling reason to continue the investigation. Based on this evidence Judge Anderson found probable cause to believe that abortion records held by Planned Parenthood and Dr. Tiller contained evidence of criminal activity, and Judge Anderson subpoenaed those abortion records in the fall of 2004.

Now, Kline faces Mr. Hazlett’s claims that his staff’s refusal to tell SRS about the details of the investigation was unethical, and a lie. As you have seen, Hazlett’s theory is not supported by law or fact. Interestingly, this claim actually was first made by Dr. Tiller’s attorneys who filed motions in Sedgwick County District Court. At that time, Tiller sought to have Judge Clark Owens find that Kline engaged in “outrageous conduct,” claiming that Kline’s refusal to tell SRS about the nature of the investigation was a lie. Judge Owens found otherwise . First, Judge Owens found that Kline investigators did not lie. They simply did not reveal the full nature of the investigation.

Next, Judge Owens correctly stated that law enforcement CAN lie in order to forward an investigation – it was the nature of undercover investigations. Judge Owens concluded that considering the law allows investigators to “make false statements” within the context of an investigation, certainly it allows investigators to refuse to divulge sensitive information to the targets.

Judge Owens decision was published more than a year before Mr. Hazlett proceeded with this theory against Mr. Kline. Hazlett simply ignored Judge Owens and went forward with this claim.

Now before the Kansas Supreme Court, Mr. Hazlett misrepresents the record and the law in what appears to be a “get Kline at any cost” mentality.

Here is one example:

In his brief to the Kansas Supreme Court, Mr. Hazlett references Mr. Rucker’s letter to SRS and states that “Rucker made no mention of the true nature of the investigation.” A casual reading of the letter reveals otherwise. The following is directly quoted from Mr. Rucker’s letter . “For your information our office is conducting a criminal investigation into the circumstances surrounding the reporting and/or failure to report allegations of sexual abuse of children, 15 years of age and younger. We seek your assistance in this investigation as your agency is the repository for this reporting information pursuant to K.S.A. 38-1522. As you are aware, the willful failure of mandatory reporters to report allegations of the sexual abuse of children is a criminal offense.

To date, our investigation leads us to believe that a reasonable suspicion exists that allegations of sexual abuse of children are either reported to your agency or incidents of sexual abuse of children that have not been reported to your agency, as required by law, may not have been investigated by law enforcement to determine whether criminal acts were committed.

Our investigation will seek to determine whether the circumstances surrounding the reporting and/or failure to report allegations of sexual abuse of children…constitutes criminal conduct under Kansas law.” (see full letter ) Mr. Hazlett’s characterization of the letter is obviously false. The letter explains with detail the nature of the investigation. Yet even this did not satisfy the Sebelius Administration, which responded by demanding a "thorough and specific explanation of the factual information" supporting the investigation.

Imagine, an agency with the duty to protect children resisting such a request from law enforcement! In this instance, it was clear the safety of the children and prosecution of their abusers was not their primary concern. Understanding the political relationship between the Sebelius Administration and Kansas abortion providers offers some clarity.

Kline and his staff were concerned that Sebelius might tip off the targets and that evidence would be destroyed – and that is just what happened. When Sebelius did learn who was being investigated her agencies destroyed evidence .

On August 5, 2003, SRS responded to the letter you just read by stating it would not comply unless the Attorney General’s office provided, “thorough and specific explanation of the factual information” supporting the investigation. Based on the Kansas Supreme Court’s rulings, SRS had the right to request that information, and the Attorney General’s office had the right to refuse the request.

In Alpha-Beta Clinics v. Anderson, the first mandamus action touching this investigation, the abortion clinics made a demand identical to the demand of SRS. The Court found the Attorney General’s office did not have a duty to provide that information . Clearly, the abortion clinics – which had a physician-patient relationship with those to whom the records related and who were also targets of the investigation – have a greater constitutional claim to this information than a third party witness such as SRS. Yet even then, the Court said the clinics were not entitled to investigative information from the Attorney General’s office.

There is no case or legal authority imposing on law enforcement the duty to reveal the factual basis of an investigation to third party witnesses. In fact, their ethical duty is often to do the opposite – to protect the integrity of the investigation, the privacy of confidential sources, and the reputation of the targets of the investigation.

On page 5 of his brief, Mr. Hazlett characterizes Kline’s actions as solely motivated by the desire to keep information from the Sebelius administration. This also is false, as Kline articulated in six pages of testimony a long list of reasons for privacy. Every witness touching on this subject at hearing confirmed this point, and Mr. Hazlett presents no evidence to the contrary.

To manufacture this claim, Mr. Hazlett had to ignore the fact that the record does not contain any misrepresentation of fact by the Attorney General’s office. He knows that prosecutors have broad discretion in the manner in which investigations are conducted. This authority is so broad that the United States Supreme Court has expressly found that the deception of third party witnesses and suspects is permitted . As Judge Owens stated , “During an investigation, a law enforcement officer is allowed to make false statements to a suspect as an interrogation technique. It would certainly not be necessary for an investigator to give a detailed explanation to a state agency as to the direction of his investigation in order to request access to records.”

Finally, there is no testimony from SRS that they were misled. When directly asked if he was misled, the SRS director said, “I don’t know, but it wouldn’t have mattered.” The request still would have been fulfilled according to normal procedure. (read transcript)

The concerns of Kline’s investigators were legitimate, yet Mr. Hazlett is still trying to take away his license to practice law. His reason is simple: Kline’s investigator refused to cave in to the demands of Mr. Hazlett's friends in the Sebelius Administration.