Marion again refuses to surrender texts after ex-chief leaves state
Staff writer
Although admitting she may already have them, an attorney representing Marion is doubling down on her refusal to release texts Gideon Cody may have hidden on his personal cell phone.
Her latest excuse is that the former Marion police chief has taken his phone and left the state — possibly, according to Sheriff Jeff Soyez, moving to Hawaii.
Media organizations, including the Record, have been requesting copies of Cody’s texts in part to determine whether other officials might have played a role in his now-disavowed Aug. 11 raids on the Record newsroom and the homes of the Record’s owners and Vice Mayor Ruth Herbel.
The latest formal request for his texts came from Monica L. Dias, an attorney for Kansas City TV station KSHB and its owner, Scripps Media.
In a formal demand letter to the City of Marion, Dias had set this week as a deadline for the city to comply with state law that makes personal texts that public employees exchange about government business subject to the Kansas Open Records Act.
In responding to Dias’s letter, attorney Jennifer Hill, who represents an insurance company defending the City of Marion, again refused to release the texts.
She restated previous excuses made in response to earlier requests, including from the Record.
Her contention is that the open records act has no enforcement mechanism allowing the city to obtain text messages or private emails from personal cell phones and email accounts.
This time, she added: “Regarding Gideon Cody, he and his personal cell phone have left the state of Kansas.”
She did not disclose Cody’s location, but Soyez told the Record that he had heard from a mutual friend in Kansas City, where Cody formerly worked, that Cody had moved to Hawaii.
The Record was unable to confirm whether Cody had obtained employment with any police department there.
His former Marion landlord, Daryl Enos, did not respond to a question asking when Cody might have moved out of his rental house outside Marion.
Cody resigned Oct. 2, three days after Mayor David Mayfield belatedly suspended him in the wake of reports by both KSHB and the Record that restaurant owner Kari Newell, with whom Cody had communicated during the raids, disclosed that Cody had told her to destroy any texts they had exchanged.
In denying KSHB’s request, Hill claimed that she had been told by the office of attorney general Kris Kobach that no mechanism existed to enforce KORA on personal devices of public employees and that doing so would impose an undue burden on the city.
She said the city might have to pay a vendor around $1,500 to search Cody’s phone.
At the same time, however, she conceded that the city might already have the texts.
She claimed that the city was preserving and maintaining data on Cody’s cell phone in anticipation of legal discovery in lawsuits.
But she argued that those copies of his texts were not subject to the open records act.
“This is attorney work product, being collected for litigation,” Hill wrote. “It is not data being collected for KORA responses. KORA responses are intended to be easily accessible documents maintained by a governmental entity within three business days.”
In fact, Marion frequently has taken more than three days to supply documents related to the raid.
Hill said that if Cody’s messages were ordered to be disclosed through the discovery process of litigation and if no order preventing disclosure was in place, she would provide them to KSHB.
In her demand letter to Hill, Dias suggested that if the texts were not provided, additional legal action might occur.
“If the city fails to produce the requested records,” Dias wrote, “Scripps will evaluate its options, including litigation seeking immediate access to the requested records and recovery of attorneys’ fees, costs and statutory damages.”
KSHB investigative reporter Jessica McMaster said the station would meet with its lawyer Friday to determine next steps in getting the texts and emails.
“The fact is these records are open public records,” Lawrence attorney Max Kautsch said.
Kautsch is president of the Kansas Coalition on Open Government and serves as a legal hot line adviser to members of the Kansas Press Association and Kansas Broadcasters Association.
The coalition Kautsch leads earlier this month presented its Above and Beyond Award to Record publisher Eric Meyer and the Record staff for “their leadership on free press and open government affairs in Kansas.”
Meyer, whose mother died from stress a day after Cody’s raid on the house they shared, was angered by Hill’s response.
“I can’t say I didn’t expect it,” he said. “Hill’s position is untenable, but she seems intent on running up the biggest legal bills she can for the city.
“As a likely plaintiff, I’m mad. But as a Marion taxpayer, who will end up footing the bill for her obstructionist tactics, I’m outraged.”