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City of Marion refuses to turn over records following newsroom raid that should be publicly available

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KANSAS CITY, Mo. — The attorney hired by the city of Marion following the raids on a Kansas newsroom has blocked access to records that should be publicly available under state law.

The KSHB 41 News I-Team requested former police chief Gideon Cody's text messages, among other public officials in Marion.

In an email on Oct. 31, Jennifer Hill, an attorney hired by the city following the raids denied the request by writing: "The City has no custody over personal cell phones and KORA provides no enforcement mechanism to obtain text messages from personal cell phones. As such, obtaining text messages from the personal property of the listed individuals would place an unreasonable burden on the City and, to the extent any such records even exist, the City is under no obligation to produce such records."

Max Kautsch, a media attorney based in Lawrence and the president of the Kansas Coalition for Open Government called the denial, in which Hill provided no exemptions to Kansas's open record's laws, "mind blowing."

"What’s troubling is that the agency seems to be saying that it isn’t a public record to begin with and that the agency doesn’t have control over it," Kautsch said. "That just completely and totally eviscerates the language of the 2016 amendments."

In 2016, Gov. Sam Brownback signed a bill into law that makes personal electronic devices public record for non-elected public officials.

The law states:
"Public record" means any recorded informations, regardless of form, characteristics or locations, that is made, maintained or kept by or is in possession of:
(A) Any public agency; or
(B) any officer or employee of a public agency pursuant to the officer's or employee's official duties and that is related to the functions, activities, programs or operations of any public agency.

"The words on the page are very, very clear," Kautsch said. "But, then the government actor, the potential defendant, claims that reality is different."

Bernie Rhodes, attorney for Marion County Record, said Hill is cherry picking which information is being released.

"The idea that it’s a burden for Gideon Cody to get up off his couch and hand his cellphone to Jennifer Hill makes me sick to my stomach," Rhodes said. "He can go forcibly grab cellphones from reporters but he can’t turn over his own cellphone to his own lawyer."

The KSHB 41 News I-Team also requested Cody's personal emails, which was also denied.

Rhodes agrees Hill's response goes directly against the 2016 amendments.

"The idea that you could hide behind your personal email is exactly why the 2016 amendments to the Kansas Open Records Act were enacted," Rhodes said. "The whole point was to avoid this kind of a sham — having a sham shadow government conducted on private cellphones."

Do texts and emails exist regarding the raids?

Kari Newell, the business owner whose driving record Cody used as a premise to launch a raid on the newspaper and two homes, told the I-Team Cody directed her to delete text messages.

"He just said to me that he felt it would be beneficial if I deleted those text messages to just kind of remove the element of any connection between him and I that could be deemed inappropriate," Newell said.

According to Newell, there was nothing inappropriate in the text messages.

Newell said Cody texted her after she deleted the original messages and she provided a copy of those texts to the KSHB 41 News I-Team.

In the text messages, a person identified as Chief Cody in Newell's phone, sent a message saying he didn't want people to get the wrong impression about their relationship because Newell sent a smile emoji.

The I-Team discussed the matter with Brogan Jones, who is the Marion city administrator. He confirmed Newell also told him Cody directed her to delete text messages.

Brogan would not say if the city council would take any action against Cody.

One day later, Cody was suspended and later resigned.

On Tuesday, Cody's resignation letter was provided to the I-Team by the newspaper's attorney. The email was sent from Cody's private email account to Marion Mayor David Mayfield's private email.

Mayfield forwarded the email to the city administrator's public account, which is how Rhodes obtained it.

Hill's denial could cost Marion taxpayers with legal fight

Kautsch, who was an observer of the Judicial Council meetings on the 2016 amendments and spoke in favor of the law including private communications related to government business, said Hill did not follow standard protocols for denying Cody's text messages, like citing an exemption.

"Those communications fit the definition of public records and are subject to disclosure," Kautsch said. "Did we all waste our time putting this statute together? Because the city of Marion seems to think it’s not a worthwhile law."

Kautsch anticipates some of the people seeking the records will sue, which could make this a precedent-setting case.

"This is a case of first impression — there’s never been any opportunity for any court to enforce this since it was passed in 2016," Kautsch said. "I think that it’s so important that this not be a precedent, that the odds are high that someone will fight it. They have standing to bring an open records lawsuit."

As for why the city made this decision, Kautsch said the contents of Cody's texts and emails may have been a determining factor.

"It's a risk-reward calculus by the agency," Kautsch said. "Some of their calculus is, well, what’s really going to be the consequence? Is anyone gonna come and try to do this (sue), and if not, then their version of reality controls."