KANSAS CITY, Mo. — A state judge ruled Friday in favor of the Marion County Record, a news organization raided by police back in August of 2023, in an open records case filed by the newspaper.
Chief District Court Judge Ben Sexton ruled that the City of Marion acted in “bad faith” and attempted to make the Kansas Open Records Act “useless.”
Sexton granted the newspaper's motion for partial summary judgment against the city in regard to the KORA request for the former police chief of Marion, Kansas, Gideon Cody's texts.
Cody claimed that reporters with the Record, Phyllis Zorn and Eric Meyer, committed identity theft by obtaining information about a local restaurant owner's driving history.
He further accused former vice mayor of Marion, Ruth Herbel, of committing a crime by sharing the restaurant owner's driving information with the city administrator.
At the center of the ruling were text messages between Cody and Administrator Brogan Jones about an investigation of the newspaper, which involved Cody leading a raid on the newsroom and two residences on Aug. 11, 2023.
When the Record made its KORA request for all texts sent or received from Jones's city-owned phone, the city told the newspaper on Oct. 24, 2023, it was “not aware” of any relevant texts from the device.
However, Sexton ruled that what the city said was “absolutely contradicted” by their response to KSHB 41 a week later, which claimed the city "did locate text messages sent on a City-issued cell phone between Jones and [Mayor David Mayfield]."
On July 12, 2024, the Record filed suit against the city for refusing to provide the texts from Cody and Jones.
On Dec. 16, 2024, Jones testified in a deposition that he had texted Cody twice from his City-issued cell phone about the investigation of the Record between Aug. 8, 2023, and Aug. 14, 2023.
Jones said he did not delete these texts and the messages were still on the phone he left with the city after he resigned in January of 2024.
The city did not supply the Record with the texts from Jones's cell phone until Jan. 3, 2025. One of those texts was from Mayfield saying he was "behind [Cody] and his investigation 100 percent."
Sexton ruled that the city waiting so long to comply with the Record's KORA request, which led to the newspaper filing suit, illustrated "bad faith.”
The city declined to provide texts from Cody’s phone because his phone was not city-issued, he was no longer working with the city when the Record asked for the texts, and obtaining them would have imposed “an unreasonable burden.”
Sexton rejected the city's reasonings, noting that the Kansas Legislature had amended KORA to expand the definition of a public record in 2016 to include personally owned phones, that the city never attempted to ask Cody for the texts, and that a previous federal lawsuit indicated they had electronically stored information on Cody's phone related to the raid.
Sexton also referenced an unimplemented city policy that police officers must use city-owned phones instead of privately owned phones to conduct business.
“The defendant does not get to hide behind their failure to issue phones to police,” the judge wrote in the ruling.
The city argued that it offered the newspaper Cody's texts to resolve the lawsuit.
However, Sexton was against the city's offer, calling it a "bargaining chip" that would make KORA "useless.”
The judge ordered the city and the Record to confer on the amount of legal fees the city must pay.
He ordered that if the two parties do not reach an agreement, there will be a court hearing June 12.
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