A state panel is coming to a consensus about how to reform the state’s open records law so it can’t be skirted by government officials using private e-mail or devices.
Sen. Molly Baumgardner, R-Louisburg, and Rep. Jim Ward, D-Wichita, say the determining factor for whether a document is considered public should be the content of a record rather than where it’s stored.
“We haven’t agreed on language yet, but there is consensus in the committee that it’s about content, not location,” said Baumgardner, who is chairing a study committee on the issue for the Kansas Judicial Council. “I mean, on iPad I could have public (documents) as well as private … so it’s not the device, it’s not location. It’s content.”
In the committee’s view, a government official’s communication should be subject to the Kansas Open Records Act even if he or she uses a private server, e-mail or electronic device. That’s murky under current law. Attorney General Derek Schmidt issued a controversial opinion in April that said private e-mails by government employees aren’t public records even if they involve government business.
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Ward, an attorney who is also on the committee, said right now the law is backwards because it relies on whether the communication happened on a government server or e-mail for electronic records. “It’s the content. It’s a public document no matter where that they put it,” Ward said of the reforms the committee will pursue.
The study committee was formed after The Eagle revealed that officials in the Brownback administration had used private e-mail to conduct government business and after widespread media attention to Hillary Clinton’s use of a private e-mail server as U.S. Secretary of State.
Clinton called her use of a private server a mistake in an interview with ABC News this week.
Baumgardner, who teaches journalism at Johnson County Community College, said another concern the committee has identified is that “more and more business is done with texting and is there a real means for preservation of that as a document.”
Baumgardner said the state might need to work on updating its statutes concerning the preservation of records as well.
The Judicial Council will vote on the committee’s recommendations in December and if they’re approved submit them to the Legislature.