The attorney hired by the city of Marion following the raids on a Kansas newsroom has blocked access to records that should be publicly available under state law.
The KSHB 41 News I-Team requested former police chief Gideon Cody’s text messages, among other public officials in Marion.
In an email on Oct. 31, Jennifer Hill, an attorney hired by the city following the raids denied the request by writing: “The City has no custody over personal cell phones and KORA provides no enforcement mechanism to obtain text messages from personal cell phones. As such, obtaining text messages from the personal property of the listed individuals would place an unreasonable burden on the City and, to the extent any such records even exist, the City is under no obligation to produce such records.”
I don’t see what the city prosecutor has to do with it. This is similar to a FOIA request, just based on Kansas law, which is pretty clear:
This guy’s cell phone is clearly “kept in the possession of an officer or employee of a public agency.” The city is arguing that asking for the cell phone is an “undue burden” efficiency is ridiculous on its face.
The reason that records acts like this are put in place is because the way you described it working would be a clear conflict of interest: the city prosecutor suing the city to turn over the records of an official, with an attorney hired by the city working to keep those records from being public.
They’re separate thoughts that are inconveniently in the same paragraph.
There’s nothing wrong with defense making this argument, any competent attorney would do the same.
This case generally should be subject to prosecution because the raid is so blatantly corrupt.
City prosecutors can absolutely sue city officials though in cases like this, they normally get a special prosecutor or someone from another jurisdiction (like the county or state) to avoid the conflict like you said. This records act has nothing to do with criminal prosecution, it’s about public disclosure. A prosecutor can just get a warrant. This is happening because the news organization is requesting the messages.
That law doesn’t mean that every public officer’s phone is an open book, it means that anything a public officer does in their public capacity on a private device is still subject to normal public records disclosures. You don’t get the entire phone, you get the public records (the relevant messages).
My guess, though I don’t know, is that the news organization has to somehow establish to some degree of confidence that there are public records on the personal phone, which I’m guessing they’ll be able to do.