City objects to releasing raid texts
Staff writer
The City of Marion is asking a court to reject an open-records request designed to determine whether elected officials may have encouraged last summer’s raid of the Record newsroom and the homes of the Record’s owners and council member Ruth Herbel.
The Record’s initial request came last fall, after other documents revealed that Mayor David Mayfield had told restaurant owner Kari Newell that the only way he could oust Herbel from the council was if she were convicted of a crime.
That same day, Police Chief Gideon Cody ignored instructions from city Administrator Brogan Jones and began an investigation of the Record and Herbel.
Special prosecutors confirmed earlier this month that neither the Record nor Herbel had committed any crimes, that Cody’s investigation had been cursory and mistaken, and that search warrants he obtained should not have been granted.
In October, the Record — and, a month later, Kansas City TV station KSHB — made similar requests to see messages elected officials might have sent on private messaging services.
After a celebrated case involving an aide to then-Governor Sam Brownback, state law was changed in 2018 to eliminate a loophole that allowed government officials to avoid open-records laws by using private messaging services.
Although Marion City Council members were informed of that law and warned that they could be forced to produce messages sent via private services, the city’s insurance company attorneys denied the requests from the Record and KSHB.
Both were denied on the grounds that they would impose an undue burden on the city even though, in responding to KSHB’s request, an attorney for the city admitted that she already had taken steps to collect some such messages.
The Record pointed all this out in its federal lawsuit against the city this spring. The city responded by saying the open-records dispute was a state law and should be dealt with in state court. The Record then followed up by filing its state suit seeking the records.
In asking Friday that a court rule against the Record, the city contended that the Record’s suit was not an attempt to enforce the state’s open records act.
“Rather,” the city’s answer to the suit states, “the objective of the litigation is to create a new precedent in Kansas to require all public agencies covered by the act to demand constant monitoring of employees’ private cell phones and devices.”
It further contends that the suit would “cause public agencies to create databases of records which are not kept in their ordinary possession and record-keeping processes.”
The city’s answer criticizes the Record’s suit for containing images, continues to characterize Cody’s warrants as lawfully obtained, and denies that response to the raid in national and international news media could be characterized as condemnation.
The city even questions whether the initial request, submitted by Record reporter Phyllis Zorn using her newspaper email account, was submitted on behalf of the newspaper.
It rejects the Record’s claim that initial denial of the request by a lawyer for the city’s insurance company might have been designed to “protect the city” from “potential multimillion-dollar losses.”
The city also raises procedural questions, stating: “Citing as a ‘fact’ that defendants’ counsel has made false statements or claims is not a statement of the case but merely an argument plaintiffs can present at a later date.”
It also contends: “Defendant denies plaintiff’s claims that the Kansas Open Records Act ‘guarantees’ anything.”
The city’s answer to the lawsuit accurately states that the open records act appears to contain a loophole allowing elected officials to keep secret anything they might text or email to each other.
This may limit the Record’s attempts to learn how council member Zach Collett knew to tell Newell, before police had contacted her, that both the Record and Herbel had seen the same document indicating Newell’s driving privileges had been suspended for more than a decade.
Collett was the first person to contact Newell after Herbel and the newspaper separately informed responsible officials that they had been told about Newell’s driving status.
To date, no document has been found indicating how Collett might have known the Record had seen Newell’s driving record. The only messages released so far indicate that he had been told only that Herbel had seen it and only that Jones had said police would not investigate.
After Collett communicated with Newell, Cody called on her to try to convince her she had been a victim of a crime even though the Record did not plan to publish the legally obtained information.
After also talking to Mayfield, Newell appeared at a city council meeting that night alleging that the Record had stolen her identity and given information to Herbel even though Newell admitted privately after the meeting that she knew this was not what had happened.
The case has been assigned to Chief Judge Ben Sexton. An initial hearing has been scheduled for 10 a.m. Monday in Dickinson County District Court.