Kansas policymakers say they want to bring the state’s open records law into the 21st century and ensure that public officials can’t flout it by using private e-mails and personal devices.
A special committee held its first meeting on the issue Friday and identified numerous questions on how the 30-year-old Kansas Open Records Act ought to be updated for a digital world.
“Government’s always playing catch-up to technology,” observed Rep. John Barker, R-Abilene, the House Judiciary chairman and a member of the Kansas Judicial Council, a state council set up to study and advise the Legislature on legal issues.
The Judicial Council ordered a study on the issue following news stories that exposed loopholes in the current law. The council will vote on recommendations in December on how to update the law and submit them to the Legislature.
“If everybody just used their government (e-mail) account, we’d probably have no problems,” Barker said. “Unfortunately, lately we’ve seen instances where business is being conducted on personal accounts.”
The Eagle reported in January that budget director Shawn Sullivan sent an e-mail from his private Yahoo account detailing Gov. Sam Brownback’s administration’s proposed budget and tax plan to two lobbyists with ties to Brownback several weeks before it was unveiled to the public.
The Eagle reported in May that Brownback also used a private e-mail address to conduct official business.
Attorney General Derek Schmidt issued a controversial opinion in April stating that personal e-mails from state employees do not fall under the open records law even when they concern public business. Schmidt later sent the Legislature recommendations on how to close that loophole.
Some members of the study committee criticized the opinion. Nathan Eberline of the Kansas Association of Counties said he had always taught local officials that these e-mails would be subject to an open records request.
Rich Eckert, an attorney for Shawnee County, said Schmidt’s opinion does not address state and local officers – who he argued were subject to the open records act.
Deputy Attorney General Athena Andaya responded that the opinion concerned only employees and not officers, such as the governor or attorney general. This means the loophole does not apply to the governor but does apply to his staff, such as the budget director.
Eckert said this creates a problem in which an official who is subject to the act could ask an employee to send a private e-mail on his behalf and easily circumvent the act.
Mike Kautsch, a law professor with the University of Kansas who specializes in open records law, said that when the law was originally drafted, agencies and municipalities were responsible for ensuring access to records. But increasingly because of technology, he said, individual employees and officials “have way more power over access to public information.”
The committee identified numerous other questions on how the open records act should work in the 21st century.
For example, if a county employee receives a stipend for his or her personal cellphone, should text messages on that device be subject to the open records act? What if the employee pays his or her own cell bill but uses the phone to conduct public business?
Questions were also raised as to whether private messages sent via Facebook or Twitter ought to be treated the same as e-mail if they concern official business. The issue of private servers – such as the one Hillary Clinton used as U.S. secretary of state – was also raised.
Sen. Molly Baumgardner, R-Louisburg, said the committee also has to weigh the issue of privacy because in opening up a state employee’s personal e-mail or phone to check whether messages fall under the open records act, somebody will have access to messages that are of a purely personal nature.
Eberline recommended that “the focus has to be on the content and conducting the business of the public, and if you don’t conduct the business publicly, what are the consequences?”
Right now there is no requirement in Kansas for public officials to use their public e-mail accounts to conduct public business and there is no consequence if they don’t.
Rep. Jim Ward, D-Wichita, recommended that public officials be prohibited from using private e-mail to conduct official business.
Frankie Forbes, an Overland Park attorney, pointed out that the use might sometimes be inadvertent and suggested that public officials could be required to forward any private e-mails to their official accounts. President Obama signed a similar policy at the federal level in 2014.
It’s unclear how effectively a policy could be enforced.
Eberline suggested that a penalty be put in place for individuals who intentionally circumvent the open records act with private electronic communications.
Mike Koss, representing the Kansas League of Municipalities, asked what would happen if a city’s public works director refused to relinquish e-mails. Would the city have to get a warrant? Who would be fined if this happened, the city or the public works director?
How stiff should the penalty be for an intentional violation? The current fine for an open records act violation is $500.
“To keep a secret,” Eckert argued, “that’s nothing.”