There have been a few developments in Marion, Kansas, following the now infamous August raid on the Marion County Record. Most notably, Marion Police Chief Gideon Cody resigned in early October following his suspension the previous week. His resignation came after the release of body camera footage showing him reviewing a file with information about him during the newspaper search, as well as news reports that he asked a witness in the matter to delete text messages.
On the latter front, the Record submitted a request under the Kansas Open Records Act for text messages sent to or from the mayor, city administrator, and Chief Cody related to the raid. That request may set up a “major test” for the law, often referred to as KORA.
That’s because the attorney representing the city of Marion in the matter denied the request, arguing that the city does not have custody of any private cell phones or other devices used by Cody and has no enforcement authority to compel the disclosure of those texts.
The case is notable as KORA was famously amended in 2016 to extend to emails and other records related to public business created by public officials on private devices. Specifically, the law defines public records as any “recorded information, regardless of form, characteristics or location, that is made, maintained or kept by or is in the possession of … any officer or employee of a public agency pursuant to the officer’s or employee’s official duties and that is related to the functions, activities, programs or operations of any public agency.”
The amendment to KORA followed revelations in 2015 that then-Gov. Sam Brownback’s budget chief had been using a private email account to correspond with lobbyists on ways to increase state revenue in light of massive shortfalls due to the “Kansas Experiment” tax cuts. A statehouse reporter for the Wichita Eagle (and currently the politics editor at the Kansas City Star) received a copy of the private email correspondence from a source.
The substance of Marion’s denial is also notable. The lawyer representing the town wrote that Marion “has no custody over personal cell phones and KORA provides no enforcement mechanism to obtain text messages from personal cell phones.” The implications of that position are pretty obvious. As Bernie Rhodes, the Kansas City-based attorney representing the Record, said, “any government official with half a brain or half a lawyer is going to” do business on private devices to end run KORA.
The Marion lawyer also cited an exemption for members of legislative or governing bodies in the state, but the city administrator and former police chief do not sit on the city council.
Based on some preliminary research, it does not appear that the Kansas courts have addressed this specific issue before, but the law is clear that state judges can enforce it through injunctions and the like. There is also an interesting Kansas Supreme Court case enforcing a government KORA request to a private nonprofit that had been contracted to operate a hospital.
Rhodes hasn’t said what he plans to do in response to the denial of the public records request, but this is one worth keeping an eye on (which we will do).
And, as a post-script, many thanks to Reporters Committee Steering Committee member James Grimaldi, who tipped us off to the story.
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The Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press uses integrated advocacy — combining the law, policy analysis, and public education — to defend and promote press rights on issues at the intersection of technology and press freedom, such as reporter-source confidentiality protections, electronic surveillance law and policy, and content regulation online and in other media. TPFP is directed by Reporters Committee attorney Gabe Rottman. He works with RCFP Staff Attorney Grayson Clary and Technology and Press Freedom Project Fellow Emily Hockett.