KANSAS CITY, Mo. — The attorney hired by the city of Marion has doubled down in refusing to turn over records from Gideon Cody's personal cellphone, and in doing so, confirmed the former police chief has left the state of Kansas.
On Wednesday, Jennifer Hill, who represents both Cody and the city of Marion following the raids on a newsroom and two homes, responded to a demand letter sent by an attorney on behalf of Scripps Media Inc., KSHB 41's parent company.
In Hill's response to KSHB 41's demand for Cody's personal text messages and emails, Hill said, "Regarding Gideon Cody, he and his personal cellphone have left the state of Kansas."
Background
In August, Cody erroneously claimed two reporters with Marion County Record and the city's vice mayor committed various crimes against a local business woman by obtaining and downloading her driving record.
The I-Team first requested Cody's text messages after the business owner at the center of Cody's investigation disclosed Cody asked her to delete the text messages he sent to her.
The business owner said Cody sent her text messages regarding the case and newly released body camera footage reveals Cody telling her not to put anything in writing.
Hill restated her initial claim for denying the records by writing, "KORA (Kansas Open Records Act) provides no enforcement mechanism to obtain text messages or private emails from personal cell phones and email accounts."
KBI and the attorney general
Hill told KSHB 41 News she contacted the office of Kris Kobach, Attorney General for the state of Kansas, and was "advised that the City could not enforce KORA as to the personal devices of its own employees."
In 2016, Gov. Sam Brownback amended the state's open records laws to include electronic devices that belong to appointed officials who conduct public business on the devices.
KBI's involvement
Kobach oversees Kansas Bureau of Investigation.
KSHB 41 News previously revealed emails that prove KBI knew the raids were going to happen in advance.
One day before the raids on Marion County Record, Todd Leeds, special agent with KBI, sent an email to a Marion police officer asking, "Did you guys execute this yet?"
The police officer responded, "No. My understanding is that the county attorney wasn’t in the office today.”
The subject line of the email reads: "Additional SW for Eric Meyer's Residence."
On Wednesday, the KSHB 41 I-Team sent an after hours email to Kobach's office asking if agrees with Hill's interpretation of the law.
A response was not immediately provided.
Hill said the city is in the process of preserving and maintaining data on Cody's cellphone in anticipation of legal discovery in the lawsuit filed against him by Deb Gruver, former Marion County Record reporter.
Hill writes, "This is attorney work product, being collected for litigation, 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."
Hill said the cost to the city to pay a vendor to search Cody's phone would be around $1,500.
"This request is unduly burdensome pursuant to the statutory requirements of KORA both in the work required to complete it and the financial burden."
Hill said KSHB 41's request for Cody's phone records connected to the newspaper and the raid was too broad.
Hill said if Cody's messages are provided through litigation discovery, and there is no protective order placed on the messages, she'll provide them to KSHB 41.
In the initial demand letter on behalf of KSHB 41, the attorney for Scripps told Hill, "If the City fails to produce the Requested Records, Scripps will evaluate its options, including litigation seeking immediate access to the Requested Records and recovery of attorneys’ fees, costs and statutory damages."
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