Kansas Attorney General Derek Schmidt’s website says he “is dedicated to making the Kansas government more accessible to the public.” Yet he effectively green-lighted more secrecy by concluding this week that state employees’ private e-mails about public business are not public records.
Surely the state’s designated open-government watchdog can see the problem with that.
If so, Schmidt will now lobby the Legislature to ensure that the Kansas Open Records Act applies to e-mails about government business sent from private accounts and personal devices as well as from public e-mail accounts and state-owned devices. That’s the case in about half the states.
Senate Minority Leader Anthony Hensley, D-Topeka, asked for an attorney general’s opinion in February after The Eagle reported that Gov. Sam Brownback’s budget director had used a private e-mail account to send a draft of the governor’s budget proposal to top administration officials and two lobbyists.
Schmidt may be correct in concluding that a state employee is not legally a “public agency” (though he leaves Kansans to wonder why a state employee could not be considered an “officer” or “instrumentality” of the state – among the words found in state law’s definition of a “public agency”).
More important, Schmidt’s opinion underscores a fundamental flaw in Kansas open-government law, which focuses the definition of “public record” not on its content but on its custody. When the people’s business is being debated or done by public employees, who owns the cellphone, computer or e-mail account should not be the only determination of whether the communication is an open record. KORA and the Kansas Open Meetings Act need to reflect that workplace communications have gone mobile and span multiple devices. Indeed, technology should be facilitating more transparency, not allowing public employees to avoid it.
But bills offered during the legislative session have been disregarded by top GOP leaders of the Legislature, as if openness is a partisan issue (and as if the Kansas Republican Party hadn’t been simultaneously hammering Democrat Hillary Clinton for her own misuse of a private e-mail server for work while she was secretary of state).
If Brownback, Schmidt and the Legislature believe, as the attorney general’s website says, that “an open and transparent government is essential to the democratic process,” they will ensure that KORA is updated to leave no doubt that state employees’ e-mails about state government are public records even when sent via private accounts or devices.
This cannot wait for another legislative session, either. Lawmakers need to fix it before they adjourn for the year.
If not, their inaction will have sanctioned and even encouraged state employees’ use of private e-mail to hide their work from their employers – the people of Kansas.
For the editorial board, Rhonda Holman