AG asked to decide whether e-mails sent from private accounts are public record

The Senate’s top Democrat is asking the attorney general to decide whether it’s a public record when state officials conduct state business using private e-mail accounts.

The request comes in the wake of revelations that the state’s budget director, Shawn Sullivan, used a Yahoo mail account to communicate details of the budget to a circle of insiders including two former aides to Gov. Sam Brownback working as lobbyists.

The e-mail, obtained by The Wichita Eagle, showed that Sullivan shared the governor’s budget plan with the lobbyists and other administration associates on Dec. 23, three weeks before the plan was released to the Legislature.

Senate Minority Leader Anthony Hensley, D-Topeka, contends that e-mails written by state employees who are conducting state business should be open to public review, regardless of whether they’re sent through the state’s e-mail system or on a Web-based freemail account.

He has accused the administration of using off-system e-mail in an effort to circumvent the Kansas Open Records Act. The act requires that state documents that don’t meet specific privacy exemptions be open to the public on request.

Sullivan said he sent the e-mail from his personal account because it was the holiday season and he was working from home. Records surfaced this week showing the exchanges had been going on since at least Dec. 6.

All but one of the 11 recipients got the Dec. 23 budget e-mail on their private accounts. Most of those receiving the messages, including Lt. Gov. Jeff Colyer, have state e-mail addresses.

The Brownback administration has said the use of the private accounts was entirely proper.

The administration has also said it has no specific policies about when private e-mails can or cannot be used.

Hensley’s letter seeking a legal ruling doesn’t directly question the propriety of the e-mails, just whether they legally should be open to the public to the extent they would if they were sent on the state system.

The Brownback administration did not have a detailed response to Hensley’s letter.

“He’s asked the attorney general for an opinion. We’ll wait and see what the attorney general says,” said Brownback spokesman Eileen Hawley.

Both Hensley and Rep. Jim Ward, D-Wichita, have introduced bills in their chambers seeking to clarify that off-system e-mails dealing with state business are to be covered by the open records act.

An attorney general’s opinion, while not legally binding, is considered official guidance until a legal question is either directly addressed by legislation or settled in a court case.

This story was originally published February 12, 2015 at 6:29 PM with the headline "AG asked to decide whether e-mails sent from private accounts are public record."