Kansas attorney general offers revisions to open records act dealing with e-mails

TOPEKA – Attorney General Derek Schmidt sent the Legislature a proposal Wednesday to make it harder for officials who use private e-mail for public business to keep those messages private.

Schmidt recently issued an opinion that the Kansas Open Records Act doesn’t cover the situation because it deals only with agencies, not individuals. He said the state should revise the law to make it apply to agencies and the people who do the agencies’ work.

“The problem of distinguishing protected private emails from private emails that may be ‘public records’ is unique to the context of flesh-and-blood individuals since government entities, by definition, cannot maintain a private email account; and (2) defining individuals to be a ‘public agency’ renders other parts of the KORA unreasonable or absurd and thus subject to legal challenge,” Schmidt wrote in a brief to the Legislature’s legal department.

On Thursday, Schmidt offered proposed amendments to the act that would change that.

His proposal would:

▪ Specify that the open records act applies to living persons who perform the business of public agencies as well as to the agencies themselves.

▪ Clarify the word “location” in the act to make it clear that a state record is open to disclosure even if it is on a private e-mail server.

▪ Establish limits to protect the privacy of government employees’ personal e-mails that are on the same private account as disclosable state records.

The proposal to update the law on disclosure stems from Eagle reporting into state Budget Director Shawn Sullivan’s use of his personal e-mail account to privately share budget information before it was released to the Legislature and the public.

The information was shared with a select group of political advisers to Gov. Sam Brownback, including two registered lobbyists.

The Brownback administration has said it does not have a rule about when state employees can or cannot use private e-mail accounts. The governor’s office did not respond to a request for comment on Schmidt’s proposal.

In creating his benchmark for which private e-mails should fall under the open records act, Schmidt drew upon a 2006 U.S. Supreme Court decision, Garcetti v. Ceballos, which found that when public employees make statements “pursuant to their official duties,” the First Amendment does not shield that communication from their employer.

“Under the ‘pursuant to official duties’ test, a public employee who uses a private email account to bypass KORA when conducting or transacting public business would be acting ‘pursuant to their official duties’ and the private email would be a ‘public record,’ ” Schmidt said.

“However, if the employee sent a private email to, for example, his or her mother and in that personal communication (sent not as a public employee but as a citizen or as a son or daughter) mentions or discusses matters ‘related to’ his or her agency or office, that email would not be a ‘public record.’

“This distinction should satisfy the important public interest in government openness while also remaining within the bounds of the First Amendment as interpreted in current U.S. Supreme Court case law,” Schmidt said.

The Kansas Press Association, which had been harshly critical of Schmidt’s recent opinion that the open records act did not cover private e-mails, praised the attorney general for taking initiative on the issue.

“I commend the attorney general for his proactive approach to the question of public business being conducted on private e-mail accounts,” Doug Anstaett, the association’s executive director, said in an e-mail. “I think we can all agree to allow this loophole to continue would be dangerous to open government in Kansas. It must be remedied now.”

Schmidt first floated the idea of changing the open records law to The Eagle on Friday after facing a wave of criticism for his opinion. He defended the opinion as based on current law rather than on what he wishes the law should be.

Rep. Jim Ward, D-Wichita, and Senate Minority Leader Anthony Hensley, D-Topeka, offered legislation to close the private e-mail loophole earlier in the session, but it has gained little traction.

Some top Republicans in the Legislature, including Senate Vice President Jeff King, R-Independence, have expressed a desire to review the issue.

Schmidt sent the Legislature his proposal in the expectation there could be another push to close the loophole before the end of the legislative session.

Other states also are grappling with the issue. Florida Gov. Rick Scott faces a lawsuit over allegations that he has conducted state business on a private e-mail address to skirt that state’s open records law.

And the issue surfaced in the presidential race with the revelation that Hillary Clinton exclusively used a private e-mail server during her tenure as U.S. secretary of state.

This story was originally published May 6, 2015 at 5:09 PM with the headline "Kansas attorney general offers revisions to open records act dealing with e-mails."