Kansas town denies raided newspaper’s request for city officials’ texts, flouting 2016 law

The City of Marion, Kansas, rejected a records request this week for text messages on the phones of top city officials sent before and after police raided the local newspaper, a move that could severely weaken a key 2016 reform of Kansas’ open records laws.

The Marion County Record, which police searched on Aug. 11, had requested text messages sent to and from Mayor David Mayfield, City Administrator Brogan Jones and former Police Chief Gideon Cody related to the search, the newspaper and its reporters. It also sought messages about Vice Mayor Ruth Herbel, whose home was also searched as part of an investigation into alleged identity theft that fell apart amid widespread condemnation of the raid.

Wichita-based lawyer Jennifer Hill, who is handling records requests to the city in the aftermath of the raid, denied the Marion County Record’s request on Tuesday. The newspaper reported on the denial this week.

Hill wrote in a letter to the newspaper that Marion “has no custody over personal cell phones and KORA provides no enforcement mechanism to obtain text messages from personal cell phones.”

But the Kansas Legislature in 2016 unanimously passed a bill to ensure government officials couldn’t shield records from disclosure by conducting public business on personal devices or email accounts. The law, which amended the Kansas Open Records Act, defines public records to include any recorded information if it pertains to government business, regardless of its location.

The denial instantly raised alarm bells among press and open government advocates in Kansas. Bernie Rhodes, a Kansas City-based attorney who represents The Record and also represents The Star, condemned the decision in an interview, saying the effect of the 2016 law was to eliminate the “exact sham argument” made by Marion.

“If this denial is allowed to stand, it is a primer for gutting the Kansas Open Records Act. Because any government official with half a brain or half a lawyer is going to engage in this illegal scheme,” Rhodes said.

Rhodes indicated the newspaper is weighing its options, but didn’t rule out a lawsuit.

Hill also wrote that even if records exist, Marion has no obligation to turn them over. And she said an exemption in the law allows officials to withhold records “made, maintained or kept by an individual who is a member of the legislature or of the governing body of any political or taxing subdivision of the state.” It’s unclear how the exemption would apply to Jones or Cody, who don’t sit on the Marion City Council.

Mayfield and Jones didn’t respond to questions from The Star on Thursday.

The Star submitted its own records request on Thursday, seeking any text messages from Mayfield, Jones and Cody containing public records related to the raid and The Record between August and Cody’s resignation in early October. Marion didn’t immediately respond to the request; under state law, government agencies have up to three business days to respond.

‘A real problem’ if records denied

The raid of the Marion County Record by Cody and other officers has already led to sharp allegations the city engaged in flagrant violations of 1st and 4th Amendment rights.

Just days after police searched the newspaper, Herbel’s home and the home of the paper’s editor and publisher, Eric Meyer, the search warrants used to justify the raids fell apart after the county prosecutor found them insufficient. Meyer’s 98-year-old mother, Joan Meyer, died the day after the search; and reporter Deb Gruver filed a federal lawsuit against Cody.

Now, the city is kicking over another hornet’s nest in setting the stage for a legal showdown over the meaning and scope of the 2016 law.

Emily Bradbury, director of the Kansas Press Association, said the Marion request marked the first blanket denial involving the 2016 law she was aware of, adding that Marion’s position is concerning to her and others given the ubiquity of personal devices in everyday life. Clarification about the law is needed because of the amount of business conducted on personal cell phones, especially at the local level.

If the denial stands, Bradbury said, “we’ve got a real problem.” Fixing the law would become a priority of the Kansas Press Association in such a situation, she said.

“It’s not just about journalistic endeavors, it’s about the public knowing what’s happening,” Bradbury said.

Many of the smallest units of government – like library boards and water district boards – may not have dedicated email addresses or phones for members. If officials can shield public business done on their personal devices by simply asserting that there’s no enforcement mechanism to get those records, then the 2016 law is essentially toothless.

At the time, the 2016 law was hailed as an important bipartisan reform to close a glaring loophole in the Kansas Open Records Act. Derek Schmidt, then the Republican state attorney general, said the law would help “bring the Open Records Act into the 21st century.”

The year before, The Wichita Eagle exposed how Shawn Sullivan, the state budget director under then-Gov. Sam Brownback, used a private email account to send two lobbyists a draft of the state’s budget several weeks before it was unveiled to lawmakers. At the time, state law allowed officials to shield messages from disclosure if sent with a private account.

“The spirit of the law was that those would become public documents subject to any request,” former Rep. John Barker, an Abilene Republican who sat on a Kansas Judicial Council committee that workshopped the legislation, said of public records on private accounts and devices.

Inquiries about Kansas’ open records laws are among the most common questions fielded by the League of Kansas Municipalities, said John Goodyear, the league’s general counsel. The league conducts two to four general trainings on open records laws a year and also produces a manual on the topic, adding that the 2016 change to the law is a focus in its trainings.

The league’s prevailing message, Goodyear said, is to emphasize the presumption that records are open.

“We urge caution to city officials and ask them to refrain from using personal accounts to conduct public business, because texts, messages, or emails can all be subject to the Act if they meet the definition of a record—even if they are on their personal devices or accounts,” Goodyear said in a statement.

“It is best practice to keep all city business on city accounts.”

The Star’s Katie Bernard contributed reporting