Bid to block open-records investigation denied
Staff writer
Attempts by the City of Marion to block investigation of open records violations were rejected Monday by District Judge Ben Sexton.
The rejection came after Record attorney Bernie Rhodes disclosed that the city may have lied when it rejected a Record request to view text messages and emails regarding a raid Aug. 11, 2023, on the Record newsroom and two homes.
“The city issued what we believe was a bad faith denial for documents that we believe may be damning,” Rhodes told Sexton.
Jennifer Hill, an attorney for the city’s insurance company, responded in October, 2023, to the Record’s request under the Kansas Open Records Act by stating that no such records existed.
However, Rhodes cited a deposition and a declaration obtained earlier in the day Monday that revealed at least several such records existed.
He cited sworn statements from former city administrator Brogan Jones and sheriff’s detective Aaron Christner who admitted that they had received messages that would have been covered by the Record’s request.
After hearing this, Sexton rejected attempts by Hill to quash subpoenas compelling depositions from former Marion mayor David Mayfield and interim Marion police chief Zach Hudlin.
Rhodes also had sought to depose former Marion police chief Gideon Cody, but lawyers for Cody and both sides in the open records case stipulated last week that Cody would cite his Fifth Amendment right against self-incrimination and decline to testify.
At Monday’s hearing, Hill attempted to use attorney-client privilege as grounds for limiting Rhodes’ questioning about whether the city made any effort to locate records covered by the newspaper’s request.
In the wake of the now-disavowed raid, the city received hundreds of open records requests from news organizations worldwide.
Hill apparently took over as the custodian of records.
“Everything attorneys did after Aug. 12 was in anticipation of litigation,” she told Sexton at Monday’s hearing.
But Rhodes countered: “She was acting not as a lawyer but as a custodian of records. Merely because she has J.D. after her name does not mean that everything she touches is magically protected.”
Hill also cited a ruling delaying discovery of evidence in separate federal civil rights lawsuits filed by the Record and other victims of the raid.
“If you believe this is in violation, take it up with that judge,” Sexton ruled.
An hour before the hearing, Jones conceded in an online deposition that he had received two messages from Cody regarding the investigation.
Their existence was disclosed in previously secret investigative files from the Kansas and Colorado Bureaus of Investigation.
In sworn testimony, Jones verified that they existed and that no one with the city had ever asked him about them in response to the Record’s request for such messages under the Open Records Act.
When Jones was asked whether Hill had ever asked him whether they existed, Hill objected, telling him not to answer because of attorney-client privilege.
In her denial of the Record’s request in October, 2023, Hill asserted that expecting the city to ask current and former employees whether they had exchanged messages covered by the Open Records Act would be “an undue burden” on the city.
“It would not have been burdensome at all,” Rhodes told Sexton. “It would have taken 30 seconds. The city is thumbing its nose at the Marion County Record.”
After the Record sued in state court this past summer over Hill’s denial of its request for texts and emails, Hill did provide 69 pages of messages sent by Cody.
The messages Jones and Christner admitted receiving Monday were not among them.
“I can’t rely on those 69 pages now that I know about Christner and Jones,” Rhodes told Sexton.
The Mayfield and Hudlin depositions, which will not be open to the public, are scheduled for today and Friday.
Hill argued that information obtained in Rhodes’ questioning of them might be of use in federal lawsuits against the city but of limited value in the newspaper’s state lawsuit under the Open Records Act.
“I’m not going to grant the motion to quash,” Sexton ruled. “Discovery is broad in nature. You’re asking me to rule on things that may or may not happen in the future.
“If there’s an objection, that objection will be made, and I’ll have a chance to rule on it at that time. The court is not going to give you a blanket order.”
Monday also was to have been a day in court for Cody, who faced a status hearing before a different state court judge on criminal charges that he obstructed justice by urging destruction of texts and emails.
That hearing was canceled, and a public preliminary hearing in his case was scheduled for 9 a.m. May 21.