Judge rules for paper in open records case
Staff writer
In an open records case brought by the newspaper, a state judge ruled Friday that the City of Marion acted in “bad faith,” “failed in its duties,” and attempted to shirk responsibilities in ways that would have rendered Kansas Open Records Act “useless.”
District Judge Ben Sexton granted the Record’s motion for summary judgment against the city and ordered the city to pay the Record’s legal fees — the only remedy possible under KORA.
At issue was the city’s refusal in October, 2023, to disclose text messages to and from former Police Chief Gideon Cody and Administrator Brogan Jones about a later disavowed raid Cody led Aug. 11, 2023, on the Record newsroom and two residences.
Among the texts the city denied existing when Record reporter Phyllis Zorn asked for them was one from then Mayor David Mayfield admitting that he had met with Cody and Sheriff Jeff Soyez before the raid and had told Cody he “was behind him and his investigation 100%.”
When the Record made its request for texts under KORA, the city said it was “not aware” of any relevant texts on Jones’ city-owned phone.
Sexton ruled, however, that this was “absolutely contradicted” by the city providing some such texts days later to Kansas City TV station KSHB.
Jones was aware of the texts, had not erased them, and had seen the Record’s request for them, Sexton noted. Moreover, the city had possession of Jones’ city-owned phone even after Jones resigned in January, 2024.
The city did not provide texts to the Record until after Jones was required to testify under oath five months after the Record filed suit in the summer of 2024.
“The defendants failed to provide the texts off of Jones’ phone without reasonable basis in fact or law,” Sexton ruled. “The fact that the defendants had the phone, had provided texts off that phone to KSHB on Oct. 31, 2023, and failed for over one year to provide those texts, certainly well before the three business days as required by statute, shows that this was not in good faith.”
The city declined to provide texts from Cody’s phone because he had used a personally owned phone, he no longer was a city employee when the Record asked for the texts, and obtaining them would have imposed “an undue burden.”
Sexton rejected all three of those excuses.
He noted that the legislature intentionally amended the Open Records Act prior to the request to include personally owned phones, that the city never even asked Cody for them, and that in fact it had possession of the texts anyway because of another lawsuit.
Sexton also noted a city policy — never implemented — that police officers use city-owned phones rather than privately owned phones to conduct official business.
“The defendant does not get to hide behind their failure to issue phones to police,” he wrote.
Eventually, the city offered the Record some texts if the Record would drop its suit. But, Sexton wrote, “attempting to use the texts as a bargaining chip would render KORA useless.”
“The court further finds,” Sexton wrote, “based on the facts in this case, that the defendant’s waiting so long to comply with the Zorn request and forcing the Record to file suit illustrates bad faith.”
He ordered the city and the Record to attempt to agree on the amount of legal fees the city must pay and ordered that if they do not reach an agreement, he would take up the issue in a hearing June 12.
The Record and current or former employees also have pending federal lawsuits against the city and the county and some of their employees regarding allegations of First and Fourth Amendment violations and violation of a federal law limiting newsroom searches.