Paper sues over refusal to release texts
Staff writer
A lawsuit filed Friday alleges that Marion violated Kansas Open Record s Act by refusing to release texts that may have implicated politicians in Aug. 11 raids at the newspaper and two homes.
After hearing an admission last fall from restaurant owner Kari Newell that Police Chief Gideon Cody had asked her to destroy text messages they had exchanged, the Record asked the city for other text messages about the investigation.
The request covered messages sent to or from Cody, Mayor David Mayfield, City Administrator Brogan Jones, and other members of the city council at the time.
The Record and other plaintiffs have contended in separate federal lawsuits that Mayfield was a key instigator of a conspiracy to silence both the Record and city council member Ruth Herbel.
The Record’s request included messages sent to or from privately owned as well as city owned phones.
The request initially was denied by Jennifer Hill, an attorney with a Wichita law firm representing EMC Insurance, which insures the city against law enforcement and general liability.
She stated that the city was not aware of any relevant texts and that obtaining texts from privately owned phones would “place an unreasonable burden on the city” and was not legally required.
The Record’s suit, filed Friday in Marion County District Court, characterizes all Hill’s claims as false.
Rather, the suit says, they were designed to “protect the City and EMC Insurance from further liability based on the content of the damning text messages.”
The suit cites amendments made in 2016 to the Kansas Open Meetings Act.
The amendments declare that all Record s, regardless of form or location, made by any officer or employee pursuant to official duties, are public Record s, whether in the possession of the agency or the individual officer or employee.
The Record’s suit quotes numerous legal sources as agreeing with this interpretation.
Among them are the Kansas League of Municipalities, which the Record’s suit quotes as stating that the law applies to all Record ed information “whether stored on server systems maintained by the public agency, third-party providers, or employees’ personal devices.”
After Hill denied the Record’s initial request, Kansas City TV station KSHB made a similar request for texts from private phones.
Hill denied that request, too, again citing the same “unreasonable burden” argument.
But she also admitted in her denial that she already had taken possession of contents of Cody’s phone before he left the state after being suspended then resigning as chief.
“Remarkably,” the Record’s suit states, “despite admitting she was in possession of Chief Cody’s phone, Hill continued to claim it would be unduly burdensome to provide copies of the text messages on the phone.”
The Record’s suit asks that the messages be revealed as required by law and that the Record be awarded attorney fees for the cost of the suit because the city’s denial of access “was not in good faith and without reasonable basis in fact or law.”
The Record’s ongoing federal lawsuit contends that something changed four days before the newspaper was raided.
Jones earlier had informed Mayfield that he was aware that Herbel had received a copy of a document detailing Newell’s license suspension.
However, he wrote in doing so that he had instructed Cody not to investigate further.
Only Mayfield could have overruled Jones and ordered Cody to proceed, the Record’s federal suit states.
The same morning that the investigation began, council member Zach Collett was the first city official or employee to reach out to Newell with comments indicating he had knowledge that both the Record and Herbel had seen Newell’s driving Record .
How Collett obtained that information is unclear. To date, the city has released no evidence of any messages to Collett indicating that the Record also had a copy or indicating what prompted Cody to go ahead even after Jones had told him not to investigate the matter.
Messages shedding light on how that decision was made and the roles that Mayfield, Collett, and others may have played is what the Record’s request seeks to obtain.