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Posted on Mon, Oct. 22, 2007
By DAN MARGOLIES
The Kansas City Star
Two Star Reporters will Testify in BPU Case
Two Kansas City Star reporters have been ordered to testify in a federal inquiry into possible criminal violations of the Clean Air Act by the Board of Public Utilities.
The reporters - environmental writer Karen Dillon and Mark Wiebe, who covers the Board of Public Utilities - were subpoenaed in August by the government as part of a broader grand jury investigation of the BPU.
The subpoenas sought the reporters' testimony about, and notes from, a March 7 interview they conducted with four BPU officials. The officials agreed to the interview after The Star published a story based on a confidential 'liability analysis' prepared for the BPU in 2005 at a cost of $112,000.
The analysis concluded that at least 15 upgrades of power plants operated by the Kansas City, Kan., utility may have run afoul of environmental regulations.
The BPU is trying to prevent the government from making any use of the analysis. It contends that the document is protected by attorney-client privilege.
The government, in turn, wants Dillon's and Wiebe's testimony and notes to prove that the four BPU officials discussed the document when they met with the reporters, thereby waiving the privilege.
According to the reporters and Wiebe's notes, the officials stressed at the outset of the meeting that they wanted to make sure they maintained their ability to claim the attorney-client privilege.
But when Dillon, who took the document to the meeting, referred to it in asking questions of the officials, they clarified some information.
One of the BPU officials expressed "concerns that we lost control of the document and lost control of issues." Elsewhere in the conversation, an official said: "You have a snapshot of what our analysis was."
The Star initially sought to quash the subpoenas, arguing that they would thwart the reporters' rights to gather and report the news and would infringe the newspaper's First Amendment rights. But in August, U.S. District Magistrate Judge James P. O'Hara denied The Star's motion. Last month U.S. District Judge Kathryn Vratil upheld O'Hara's order.
The Star and the reporters have decided not to appeal Vratil's decision.
Star Editor Mark Zieman said that the newspaper fought the subpoenas because it never voluntarily turns over notes and did not want to be a party to a 'fishing expedition' by attorneys from the Environmental Protection Agency or the BPU. Zieman, however, said he was encouraged by a comment in Vratil's ruling suggesting that the latter would not occur.
Zieman also said that the newspaper did not have any confidential sources to protect, that the interviews were all on the record and that any facts discussed during the hearing will have been previously disclosed to Star readers. He noted that Dillon and Wiebe could still claim reporter's privilege and refrain from answering any questions they find objectionable.
"To my knowledge, The Star has never gone before a judge to disclose facts we haven't already shared with our readers," Zieman said. "We don't believe this hearing will set a precedent in that regard."
The BPU sought the liability analysis after the EPA in 2004 cited another utility, Westar Energy Inc., for upgrading one of its plants without adding pollution controls.
The EPA in the late 1990s began a crackdown to enforce the federal Clean Air Act, which includes provisions to reduce pollutants emitted from coal-fired power plants.
The liability analysis, which was prepared by Stanley A. Reigel, an attorney with the Kansas City-based law firm Stinson Morrison Hecker, and Kansas City-based engineering firm Burns & McDonnell, reviewed upgrades and repairs done at the BPU's three power plants since 1980. The analysis was shared in February 2005 with BPU officials, who were instructed to keep it secret.
Early this year, the analysis was leaked anonymously to The Star and at least one other newspaper, The Pitch.
At the BPU's request, a Jackson County judge initially barred The Star from publishing an article based on the document and ordered The Star and The Pitch to remove from their Web sites articles they had published.
Four days later, the Missouri Court of Appeals lifted the order. On March 7, The Star, in a story written by Dillon, reported the document's findings. The document itself was posted on the Web sites of The Star and The Pitch.
Based on an examination of 73 BPU projects, the document concluded that 15 plant upgrades were "probably not defensible" and another 15 were "questionable."
EPA officials told Dillon that they were unaware of possible violations of the law by the BPU but said they planned to look into the matter.
Dillon and Wiebe met with the four BPU officials at BPU headquarters on the same day the story ran in The Star. The reporters wrote a follow-up story, published the next day, that quoted the officials as saying the document's release had prompted the BPU to approach the EPA - something the utility had failed to do after it received the document two years earlier.
According to Wiebe's notes, one of the officials said that the BPU "will certainly cooperate" with the EPA.
Two weeks later, a grand jury subpoenaed the BPU, ordering it to produce the liability analysis, according to court documents. The BPU then sought to quash the subpoena on the basis of attorney-client privilege, and the government countered that the utility had waived the privilege.
No date has been set for Dillon's and Wiebe's testimony. The evidentiary hearing will not be open to the public.
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- Go to KansasCity.com to see a copy of the reporters' notes that have been subpoenaed. Although it is unusual to publish such notes, they contain no confidential sources and the entire interview was on the record. Publishing the notes also ensures that the newspaper will be sharing information with its readers before being forced to disclose it in court.
Also on the site you can find copies of the March stories that were produced from a confidential utility report and the interview.
To reach Dan Margolies, call 816-234-4481 or send e-mail to dmargolies@kcstar.com.
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