Judge hears arguments over raid records

An attorney representing the City of Marion’s insurance company admitted in court Thursday that the city may have wrongly withheld items the Record requested under the Kansas Open Records Act.

But insurance attorney Jennifer Hill, who also challenged enforceability of the act, contended during nearly two hours of oral arguments that the city had been overwhelmed after its now disavowed police raid Aug. 11, 2023, on the Record newsroom and should not be judged to have acted in bad faith.

Instead, she argued that the newspaper acted in bad faith by using the records act to get around federal court delays in obtaining testimony on whether there might have been a conspiracy against the paper.

Although the city initially said no records covered by the newspaper’s request existed, 15 months later it produced a text message in which then-Mayor David Mayfield stated than he had conferred with then-Chief Gideon Cody three days before the raid and “was behind him 100%” and “can’t wait” to see the results.

Newspaper attorney Bernie Rhodes characterized that as a key disclosure by Mayfield, who in previous interviews had repeatedly denied any involvement.

“If that’s not hiding the ball,” Rhodes said, “I don’t know what is. We knew he was behind this all along.”

Hill inadvertently added to evidence that Mayfield might have encouraged animosity toward the Record.

“I produced — I was trying to be transparent — Mayor Mayfield and Gideon Cody, long before Aug. 11, where they’re discussing Gideon Cody’s email exchange with [Record editor Eric] Meyer about whether or not they had to provide weekly police reports,” Hill told Judge Ben Sexton. “Mayor Mayfield said some not-very-nice things about Mr. Meyer in those messages. And Mr. Meyer got those open records from us.”

After the hearing, Meyer told Hill he had never received such records. Hill contended he had and said she would resend them but instead sent a copy of Cody’s resignation letter from more than four months later.

Sexton did not rule on requests by the Record and the city to force the other side to pay all legal bills. He said he probably would rule on the case on the basis of requests for summary judgment. He canceled a bench trial scheduled for April and instead scheduled another hearing for June.

In her arguments to Sexton, Hill also contended that the Kansas Open Records Act did not apply to messages created by Marion’s mayor or city council members, even though she admitted providing messages sent by Mayfield to Cody.

Rhodes countered that her interpretation would emasculate changes made to the law in 2015 after legislators were concerned about a state budget official using personal accounts to hide exchanges with lobbyists about budget shortfalls.

The legislature changed the law to apply to all devices and accounts used for public business, not just government devices and accounts.

Hill contended the law was unenforceable because it failed to give cities a way to force officials, especially former officials, to reveal their messages.

“There is a way to enforce it,” Rhodes countered, staring at Sexton. “I’m looking at you.”

Rhodes cited depositions in which responsible city officials denied ever being asked whether they had such messages, prompting Sexton to ask Hill: “Isn’t that just common sense that the city should have done that?”

The hearing contained some pointed remarks about whether Rhodes was targeting Hill as much as the city. He questioned why Hill, representing Cody in a suit filed against him as an individual not as chief, had acted as the city’s records custodian without any document establishing that relationship.

He also attempted to question why the city insurance company, contracted to defend it against such things as police brutality complaints, would defend it in an open records case. Sexton cut off that discussion, however.

The key note that eventually was provided 15 months after it was requested came from the city-owned phone of then-Administrator Brogan Jones, officially the city’s records custodian. The request, by reporter Phyllis Zorn, was sent directly to Jones but answered by Hill, who contended that Jones did not tell her that the message existed until months later.