Kline is accused of seeking the names of adult patients, implying he compromised their privacy.
At the outset of his investigation, AG Kline was concerned about the privacy of abortion patients. That is why he went to such great lengths to have working documents redacted and unnecessary data screened. In order to protect the children, however, he needed to know who they were.
Kansas law does not allow a prosecutor to issue subpoenas on his own. Rather, the prosecutor must present evidence to a judge in a legal proceeding called an “inquisition.” Most states and federal prosecutors do this with a grand jury. In Kansas, the process takes place with a judge.
Once Kline’s staff realized it was necessary to seek more information through a subpoena, they approached Judge Richard Anderson to open an inquisition. Judge Anderson is a Democrat in Shawnee County, Kansas. Although he opened the inquisition in 2004, he did not meet Kline until late 2006. The investigation was primarily handled by members of Kline’s staff as Kline had other significant duties as Attorney General.
As it became clear that it would be necessary to review abortion records, Kline developed a plan to protect the privacy of adult women. Kline instructed his staff to request that any subpoenaed records be delivered to Judge Anderson rather than directly to Kline’s office. This plan would allow Judge Anderson to remove the names of adult patients prior to giving the records to Kline. Kline wanted to learn the names of child patients as they were victims of abuse, and he wanted to make sure that they were not being further victimized.
Judge Anderson agreed with Kline’s approach and issued the subpoenas.
Kline’s thoughtful approach was dramatically different than the normal procedure. Normally, law enforcement receives subpoenaed documents directly. In fact, typical medical record subpoenas are complied with in a day or two and the records, with names, are provided directly to law enforcement. It is also important to note that medical records are used in investigations all the time – and in almost all cases of child sexual molestation.
Once Judge Anderson issued the subpoenas, Dr. Tiller and Planned Parenthood filed motions to quash (or prevent) them. During the hearing on the motion to quash, Judge Anderson stated this on the record regarding Kline’s approach:
“The Attorney General [Kline] does not contend that the statutory privilege or constitutional right of informational privacy of patients should be given insubstantial consideration. On the contrary…the Attorney General has articulated an awareness of the need to conduct the investigation in the last intrusive manner to the privacy interests of the patients…Contrary to the suggestion of the medical facilities, the court has implemented some preliminary measures to guard against unnecessary disclosure…” Ex. 71, at 894 (paragraph 2).
Judge Anderson was referring to Kline’s idea that the court would remove adult patient identities prior to having the records delivered to Kline’s office. Kline did not need the names of adult women. The women were not under investigation and would not need to be witnesses . Kline could prosecute solely based on the medical records and Dr. Tiller’s and Planned Parenthood’s admissions in those records.
Judge Anderson would later testify during Kline’s ethics hearings that removing the adult patients names was Kline’s idea.
When the Kansas Supreme Court ordered that the investigation be public, the abortion clinics engaged in an aggressive campaign to frighten women. They claimed that their names would be made public and inferred that Kline was investigating the women themselves. Kline tried to calm their fears, assuring the public he was not seeking the names of the adult women and that the women were not under investigation.
The abortion clinics filed an ethics complaint claiming that those statements were a lie, and that Kline was seeking the names of adult women through subpoena.
Mr. Hazlett hired Topeka lawyers Lucky DeFries and Marybeth Mudrick to investigate this claim. Their report was issued in May of 2009 and concluded that there was no evidence that Kline lied or violated the code of ethics. In fact, the report concluded that Kline told the truth – he did not seek adult patient identities despite the legal right to do so. (Read their full report )
Mr. Hazlett buried the DeFreis Report and proceeded anyway. Hazlett focused on the actions of Kline’s investigative staff and argued that since investigators may have seen an adult patient during their investigation that Kline lied when he was not seeking adult patient names.
Kline investigators tried to identify employees at Dr. Tiller’s clinic, and hoped to speak to some of them. To identify the employees, Special Agent Williams observed Tiller’s clinic for several days in the morning hours, looking for who came in repeatedly. This would allow him to run the tags on those cars and identify likely employees.
Abortion patients, of course, do not repeatedly come to the abortion clinic – they come once or twice. Hazlett claimed that since it was possible that Williams saw an adult patient while watching the parking lot that Kline lied when he said he was not seeking adult names.
The following excerpt of testimony from Kline’s ethics hearing demonstrates Hazlett’s theory:
Excerpt from Kline Hearing Transcript pages 926-7, testimony of Special Agent Tom Williams with questions by Supreme Court appointed Disciplinary Administrator Stanton Hazlett.
Q. When you conducted surveillance on the clinics would you say there would have been time that when a female entered you were not sure whether it was a patient or an employee?
A. Absolutely. There were times that it was clear – we tried – I think – my recollection is we did it early trying to identify people at the beginning of the work day, and it wasn’t just once, we would do a cross check looking for repetition of the same vehicle being in the same area at the same time, which would draw the logical conclusion that, hey, this person is probably an employee in that building, not just someone coming in there once.
Q. Do you think it is possible that you would have taken down the license tags of some potential patients?
A. There’s always that possibility. I mean, I could pull them out of a phonebook. I have no way of knowing. I made a good faith effort to attempt to identify employees….”
Hearing Transcript, pages 926, line 8-927, line 3.
The clinics had not reported the rapes of child patients, and Kline wanted to identify the children so he could act to prevent further sexual exploitation. Kline’s office had the right to seek adult patients, he just decided not to.
Hazlett also points to a subpoena of the registration records at a hotel in Wichita. Kline’s staff had learned the hotel gave Dr. Tiller’s patients a medical discount, so the investigators could potentially learn the identities of child patients.
Investigators already knew from KDHE records the age of the children who received abortions, their hometown, and the date they received the abortion. They hoped to be able to match up the hometown and date of abortion information with the hotel information in order to identify children. Ultimately, the match-ups were not clear and the strategy did not work.
Mr. Hazlett claims that since the subpoena called for the names of adults who registered at the hotel that Kline lied and was actually seeking adult patient identities.
Kline and investigators explained to Mr. Hazlett that children do not register at hotels. Rather their adult travelling companion registers. Accordingly, if investigators sought child registrants the subpoena would not turn up any records. In other words, in order to find the children you need the names of the adults who stayed at the hotel.
This explanation did not phase Mr. Hazlett who still claims Kline lied.
This claim still exists despite the following:
- Not a single adult patient has been publicly identified;
- Kline did not follow up on any of the hotel information because his investigators concluded they could not identify the child patients using the hotel records;
- Every single witness who testified at Kline’s ethics hearing said the purpose of the hotel subpoena was to identify child patients.
- Kline’s office legally had the right to seek adult patient names, but Kline decided not to identify adults. No testimony or evidence contradicts these points.
This same issue was also reviewed by Judge David King and Judge Clark Owens. Judge King presided over a secret trial ordered by the Sebelius Supreme Court in November and December of 2007. The trial took place as part of a lawsuit in which Planned Parenthood sued Kline for the third time in two years. Judge King took testimony and subpoenaed records.
Judge King concluded that the purpose of the hotel subpoena was to identify child patients. His report was issued on January 10, 2008, years before Mr. Hazlett filed his complaint against Mr. Kline. (Read Judge King’s full report )
Judge Clark Owens presided over a multi-day hearing on a motion filed by Dr. Tiller’s attorneys claiming that Kline engaged in “outrageous conduct.” The hearing took place in early 2009, months before Mr. Hazlett filed his complaint.
In their motion, Tiller’s attorneys claim that Kline “lied” and actually sought adult patient identities. They pointed to the hotel subpoena as proof of their claim. Judge Owens disagreed finding that the purpose of the subpoena was to identify children.
“The investigation attempted to match the KDHE records with the records from the motel…to identify the adult travelling companions of the minor patients…an effort to identify the patients under the age of 16 that had obtained abortions….” (Read Judge Owen’s Full Report)
None of this deterred Mr. Hazlett, who is still forwarding the same theory. In fact, his complaint against Mr. Kline is copied directly from the motion filed by Dr. Tiller’s attorneys. (See the comparison)
In short, for trying to protect women’s privacy in a criminal investigation, Mr. Kline is now being called a liar. This claim has been repeated over and over again as fact by a state media pool which strongly supports Planned Parenthood. The state’s most dominant newspaper, the Kansas City Star, received the Maggie Award from Planned Parenthood for how the paper has reported Kline’s investigation.
Judge Anderson would later state that Kline “faced a lot of undue criticism and unwarranted criticism during the campaign, which was occasioned by critics maybe not being fully familiar with what you had done, what you were attempting to do, or [privacy] protections that you had put in place. So I give credit where credit was due….” (April 2008 hearing, Exhibit 82, 1011:22-1013:15). Anderson goes on to say that Kline’s investigation was “well founded, well articulated….” Id.
Meanwhile, no one but Phill Kline ever tried to find the children who were the victims of child sexual molestation. To this day, their rapists and their safety are unknown.