TOPEKA — Kansas lawmakers ought to update the state’s open records law to reflect modern technology, Attorney General Derek Schmidt said days after issuing an opinion that private e-mails from public officials aren’t public records even if they deal with official business.
“The current law remains as it was written down 30 years ago in the Kansas Open Records Act, not what I or anybody else might wish were there,” Schmidt said in an e-mail to The Eagle on Friday.
“Times have changed, and I think the legislature should update the statute to reflect the realities of modern communications technology. I welcome that discussion and would be happy to be a part of it,” he wrote.
One of the top Republicans in the Kansas Senate, Sen. Jeff King, also says the law needs to be changed.
The question of whether private e-mails sent by public officials about public business are public arose earlier this year. The Eagle reported that the state’s budget director, Shawn Sullivan, had used a private e-mail account to send several administration officials and two lobbyists with ties to the governor a draft of the state budget.
A Democratic lawmaker asked Schmidt to issue an opinion about whether such communications should be open to the public under the Kansas Open Records Act, which defines any record made or maintained by a public agency to be a public record.
That opinion came last week. Schmidt argued that private e-mails from state employees do not fall under the open records act, because employees are not themselves agencies.
The opinion drew criticism from the Kansas Press Association and other advocates for government transparency. Some Democratic lawmakers contended that it ran counter to the spirit of the open records law.
Attorney general opinions aren’t law but serve as guidelines for state agencies in cases where the law is murky until a court rules otherwise.
Need for openness vs. privacy
King, an attorney who is Senate vice president and chair of the Senate Judiciary Committee, said Friday that Schmidt interpreted current law correctly, but that doesn’t mean the law shouldn’t change.
“To me the pertinent question is, what should the law be,” said King.
Before the 2016 session starts, lawmakers should study how other states have addressed “this conflict between the need for openness in government and the need for people who have other businesses and other lives to be able to respect their own privacy,” King said.
“Anything that promotes openness in state business at first blush should be a good policy. We just have to make sure that openness is balanced with other needs,” he said.
“The general rule needs to be if you’re doing the business of the state, do it in a way that subjects you to the open records laws. Will there be potential exceptions to that? Sure. There already are. But that needs to be the general rule,” he said.
Rep. Jim Ward, D-Wichita, doesn’t think lawmakers need to wait to act on this issue.
“I don’t think we need to study anything,” Ward said. “It’s clear you shouldn’t use private e-mail accounts to conduct public business. And we provide public officials with a public e-mail account for that very purpose. It’s not like it’s rocket science.”
Ward sponsored legislation to close the loophole – before Schmidt’s opinion was issued – but it never received a hearing and was tabled by House leadership.
State, federal cases
Many states are grappling with the question of whether private e-mails by public officials about official business should be public records.
On Friday, a California court ordered Google to turn over data about Florida Gov. Rick Scott’s e-mail account.
A Florida judge had approved a subpoena for the information from Google as part of a case brought against the Republican governor regarding allegations that he had conducted official state business using his private account to skirt that state’s open record laws. Scott had unsuccessfully sued in California to block Google from complying with the subpoena.
The issue also has been raised at the federal level, most notably with the revelation that Hillary Clinton used private e-mail exclusively during her tenure as U.S. secretary of state.
Senate Minority Leader Anthony Hensley, D-Topeka, said Schmidt’s opinion means that Clinton would have been entirely within the law to do that had she been serving as Kansas secretary of state.
“Which is contrary to obviously how Republicans at the national level feel about this issue,” he added. “It’s very ironic. I don’t know if I find a whole lot of humor in it.”
“This is a huge loophole,” Hensley said. “And what the attorney general in effect has done is given license to people to go ahead and just use their personal e-mails to conduct official state business.”
Clay Barker, executive director of the Kansas Republican Party, said there’s a difference between Clinton’s exclusive use of private e-mail and Sullivan’s occasional use, though he agreed that Schmidt’s opinion doesn’t make a distinction between the two.
He said the Legislature should probably look at the issue. There are difficult questions that lawmakers would need to suss out in order to draw clear guidelines, he said. For example, if a public employee makes a reference to a meeting with the governor in an e-mail to a spouse that’s primarily personal, should that fall under the open records act?
Constantly changing technology
The Kansas Press Association has been highly critical of Schmidt’s opinion.
“When the statute was written we didn’t know anything about e-mail,” said Rich Gannon, lobbyist for the press association. “And as we proceed forward there’s going to be new technology and it’s going to be constantly changing. But Derek Schmidt just missed the mark on this.”
Schmidt’s opinion is worded generally and doesn’t address Sullivan specifically. Gannon said the open records law provides an exemption for public employees who work in offices that are open less than 35 hours a week. This wouldn’t apply to Sullivan, he said.
The press association is weighing whether to bring a lawsuit and test the opinion in court or to work toward a legislative fix next session, Gannon said.
Ward and Hensley say that Brownback should instruct administration officials against using private e-mail for public business in the meantime.
The Brownback administration has previously said it has no policy on when officials can or cannot use private e-mail. It said last week that it follows applicable laws when responding to open records requests and that Schmidt’s opinion confirmed that.
Asked late Friday about Schmidt saying the law should be updated, the governor’s office responded, “We do not speculate on hypothetical situations.”
Gannon said the issue isn’t just for newspapers seeking records.
“We’re talking about the citizens of the state of Kansas’ right. … We’re talking about what people have a right to know,” he said.