Brownback administration skirting open records

The Kansas Open Records Act means little if it can be skirted by switching e-mail accounts or if government agencies can move as glacially as they like to fulfill records requests. That Brownback administration officials have done both is reason enough for the Legislature to strengthen the law next spring in the name of transparency and accountability.

Furthering the case for change are the serial explanations about private e-mail use offered since The Eagle’s Bryan Lowry first reported in January that, two days before Christmas, budget director Shawn Sullivan had used a private Yahoo account to e-mail a draft of the state budget to two lobbyists and to nongovernmental e-mail accounts of several top administration officials.

Sullivan first said he used the personal account because he was home on Christmas. But e-mails obtained last week by Lowry showed that Sullivan had used his state e-mail account on the same day, Dec. 23, he sent the budget draft via his personal account to the lobbyists and top administration officials. Lowry also reported in February that Sullivan and other administration officials were communicating about the state’s budget with the lobbyists as early as Dec. 6 via private e-mail addresses.

So much for the “home for the holidays” explanation.

Last week Brownback spokeswoman Eileen Hawley offered a new one, though: Sullivan sent short messages using his work e-mail and his cellphone when out of the office, she said, but the budget e-mails “were lengthy messages that included Excel spreadsheets” and too complex for his cellphone.

And though Hawley said in January that “one e-mail that was sent over a holiday to personal e-mail accounts” was not “indicative of any trend,” The Eagle reported in May that Brownback also used a private e-mail account and cellphone to conduct official business.

Then there is the slowness with which the administration has responded to The Eagle’s open-records requests. It took from October 2014 until May to fulfill one requesting e-mail correspondence and phone communication between chief of staff-turned-lobbyist David Kensinger and the Governor’s Office, a timeline stretched by negotiations over scope and cost. Then the administration took from February until last week to fulfill the request that included Sullivan’s Dec. 23 e-mails on his work account. Even if the three-day response called for in the law is unreasonably short in some cases, seven or eight months is unreasonably long.

The issue of the private e-mail loophole is not a partisan one, as Republican complaints about the e-mails of former Secretary of State Hillary Clinton and former IRS official Lois Lerner demonstrate.

Attorney General Derek Schmidt has offered recommendations for closing the loophole in Kansas’ open-records law that now exempts private e-mails, citing the need to “update the statute to reflect the realities of modern communications technology.” The Kansas Judicial Council is working on its own proposal.

Kansas should join the more than 25 other states that have extended their open-records laws to apply to the use of private e-mail to do the public’s business, and the Governor’s Office and other public agencies in Kansas should treat open-records requests with more urgency.

For the editorial board, Rhonda Holman

This story was originally published October 19, 2015 at 7:07 PM with the headline "Brownback administration skirting open records."