TV station tires
of Marion’s denials
Although myriad requests have been made under the Kansas Open Records Act for emails and texts sent between former Police Chief Gideon Cody and others involving an Aug. 11 raid on the Marion County Record offices and the homes of its owners and Vice Mayor Ruth Herbel, a lawyer hired by the city’s insurance company has refused to disclose the documents.
Now a lawyer for KSHB-TV in Kansas City has sent a demand letter to the city, insisting that those records be provided.
Jennifer Hill, the insurance company’s lawyer, has taken over KORA requests involving the raids. A month ago, Hill refused to comply with a request sent by the Record. She cited as her excuse that the city doesn’t have custody of the records and KORA can’t be used to force the city to obtain and provide records from personal cell phones and computers.
“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,” Hill wrote.
Hill contended that text messages sent between elected officials were excluded in the definition of public records and not subject to KORA disclosure.
Hill sent the same excuse to KSHB.
“A 2016 amendment to KORA makes personal cell phones and emails subject to open record laws,” KSHB reporter Jessica McMaster wrote.
Monica L. Dias, senior counsel for content and intellectual property at KSHB, a Scripps station, wrote to Hill:
“This letter responds to the City of Marion’s denial of Scripps’ requests under KORA for certain emails and texts sent to and from former Police Chief Gideon Cody’s personal email, text accounts and personal electronic devices as well as text to/from Marion city administrator Brogan Jones.
“The plain language of KORA directly contradicts the city’s stated reasons for its denials of Scripps’ records requests. As explained below, the city’s denial of the requests violates KORA. Scripps demands immediate access to the requested records.”
McMaster had requested public and private emails starting June 1 between Cody and county attorney Joel Ensey; Mayor David Mayfield; restaurateur Kari Newell, whose identity Cody falsely claimed had been stolen when the newspaper looked up a record on a public website to confirm the authenticity of a document it had been sent; anyone on staff at the Record; and Kansas Bureau of Investigation agents regarding raids and Newell’s driving record.
The television station also requested text messages between Cody and Newell, Marion County Record, Jones, Mayfield, Ensey, and Sheriff Jeff Soyez regarding investigation into the Record.
In her letter, Dias told Hill that KORA requires a refusal to be sustained under a “preponderance of evidence.”
“The denials provide no evidence supported by KORA for the city’s claim of ‘unreasonable burden,’” Dias wrote. “Instead, the denials argue erroneously that the city is not a custodian of the requested records from personal email accounts / cell phones of Cody and other city officials and cannot compel a search and is under no obligation to search for and produce the requested records. Quite simply, KORA requires the city to search for and produce requested records stored on the requested non-elected officials’ personal email accounts and personal electronic devices.”
Media lawyer Max Kautsch said it was legal for Cody and others to do business on personal devices, but records of city business are subject to KORA requests.
“It’s not that it’s illegal to conduct business on private devices, but it’s a violation of open records act to not disclose such records upon request,” he said.
Body cam footage recorded during the raid revealed Cody updating Newell on the phone during the raids and telling her, “We can’t write anything.”
“I know, I understand,” Newell answered.
Dias demanded the records be released by Nov. 22 but extended the deadline until today because Hill asked for an extension until after the Thanksgiving holiday.
Dias wrote that if the city failed to produce the records, KSHB would evaluate its options, “including litigation seeking immediate access to the requested records and recovery of attorneys’ fees, costs and statutory damages.”
When Hill refused to supply texts and emails from Cody’s personal accounts and cell phone to the Record, the newspaper’s lawyer was not happy with Hill’s response.
“Can you spell hypocrisy?” Bernie Rhodes said. “The City of Marion says it’s too much of a burden for Gideon Cody to get up off the couch and hand his cell phone to Jennifer Hill, yet Gideon Cody seized scores of computers and cell phones as part of his illegal and illicit schemes.”
A key reason journalists at KSHB and the Record are seeking these messages is to determine the extent to which political leaders may have influenced the decision to conduct the Aug. 11 raid.