Newly disclosed messages hint of political motive for raid

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Plaintiffs and their attorneys are eagerly awaiting promised release this week of a document that may strengthen their claim that a disavowed police raid on the Record newsroom was politically motivated.

The document’s existence inadvertently was disclosed during a hearing Thursday in a Record lawsuit alleging that the city acted in bad faith by refusing to release texts officials had exchanged regarding the raid.

At the hearing, an attorney representing the city’s insurance company admitted that the city might have wrongly withheld items the Record requested under the Kansas Open Records Act.

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

As an example of the city’s openness, she claimed that the city had provided to the Record a copy of an exchange between then-Mayor David Mayfield and then-Police Chief Gideon Cody regarding a request by the Record to resume publishing a weekly police activity log.

Upon taking office in June, 2023, Cody stopped providing the log, which city police had supplied for decades. Police resumed supplying it in October, 2023, after Cody was suspended and resigned.

“I was trying to be transparent,” Hill told Judge Ben Sexton last week. “I produced [messages between] 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.

“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 informed Hill he had never received such messages.

Hill contended she had sent them and would resend them. She instead sent a copy of Cody’s resignation letter from more than four months later.

In response, Record attorney Bernie Rhodes wrote to Hill on Friday:

“You told the court yesterday that you provided Mr. Meyer with an e-mail from David Mayfield to Gideon Cody in which Mr. Mayfield referred to Mr. Meyer in various derogatory terms. . . .  

“Mr. Meyer does not recall ever seeing such an e-mail, nor do I.  I also asked the other counsel in the federal lawsuits, and they do not recall seeing such an e-mail.

 “Because you made this explicit representation to the court, please provide me with Mr. Mayfield’s e-mail, along with corroboration of the fact you produced it to Mr. Meyer in response to a KORA request.”

Hill replied:

“That will be next week for me to go through two-year-old KORA responses. The original emails between Mayfield and Cody are around July, 2023.”

Meyer and Cody exchanged emails about the issue July 3 and 4, 2023, but those emails never indicated involvement by Mayfield.

The newly revealed evidence of animus Mayfield expressed to Cody is part of a series of comments Mayfield made about Meyer and the Record leading up to the raid.

In one, Mayfield posted on Facebook 17 days before the raid: “The real villains in America aren’t black people, they aren’t white people, they aren’t Asians, they aren’t Latinos, they aren’t women, they aren’t gays. They are the radical journalists, teachers, and professors who do nothing but sow division between the American people.”

Meyer is a retired journalism professor.

A more damning text from Mayfield to Cody figured in Thursday’s court hearing.

In that text, Mayfield, who repeatedly has denied having any involvement in the raid, told then-City Administrator Brogan Jones three days before the raid:

“I went and visited with Cody and the sheriff, and I told Cody I was behind him and his investigation 100 percent. Can’t wait to see how this plays out.”

That message would have been covered by a request Record reporter Phyllis Zorn made in October, 2023, under the Open Records Act for texts officials exchanged leading up to the raid.

Instead, the city denied that any such texts existed.

It did not disclose existence of the message until 15 months after the request, only after the Record filed suit.

“If that’s not hiding the ball,” Rhodes told Sexton on Thursday, “I don’t know what is. We knew [Mayfield] was behind this all along.”

For her part, Hill admitted that the city might have made some mistakes but argued that the newspaper had 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 Record.

Sexton did not rule Thursday on requests by the Record and the city to force the other side to pay all legal bills of the state court lawsuit.

He said he probably would rule on the basis of motions for summary judgment submitted by both sides. He canceled a bench trial scheduled for April and instead scheduled another hearing for June.

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

Rhodes countered that her interpretation would emasculate changes made to the Open Records Act in 2016.

The act was revised after legislators were concerned about a state budget official using personal accounts to hide exchanges with lobbyists about budget shortfalls.

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

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

“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.

That prompted 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.

Rhodes 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’s insurance company, contracted to defend it against such things as police brutality complaints, would defend it in the Record’s open records case. Sexton cut off that discussion, however.

The key note that eventually was provided 15 months after it was requested came from Jones’ city-owned phone, not a private phone.

At the time, Jones was the city’s official records custodian. Because of that, Zorn had sent her request directly to him.

Her request was answered not by Jones but by Hill, who contended that Jones did not reveal that the message existed until months later.

In October, 2023, Hill also denied access to other messages, contending that it would create an undue burden on the city to obtain them even though she admitted she already had obtained them to prepare for federal lawsuits against the city.

In addition to the open-records suit in state court, the city is being sued on First and Fourth Amendment grounds in federal court by Meyer; the Record; the estate of Meyer’s mother, Joan, who died of sudden cardiac arrest from stress created by the raid; Zorn; Record office manager Cheri Bentz; and Ron and Ruth Herbel, the then-vice mayor whose home also was raided.