Kansas Gives Lawmakers a Way to Keep Public Business Off Public Record

by | April 30, 2015

By Bryan Lowry

Public officials in Kansas can conduct public business on private e-mails without those e-mails becoming public records, Attorney General Derek Schmidt said Tuesday.

Schmidt's opinion comes after The Eagle reported in January that Gov. Sam Brownback's budget director, Shawn Sullivan, had used a private e-mail address to send top administration officials and two lobbyists with ties to Brownback a draft of the state budget three weeks ahead of its public unveiling.

Senate Minority Leader Anthony Hensley, D-Topeka, asked Schmidt in February for an opinion on whether e-mails sent by a public official from a private e-mail address on a personal electronic device are subject to the Kansas Open Records Act.

"In short, we think the answer is 'no,'" Schmidt wrote in the opinion issued Tuesday.

Reactions to the opinion varied. The governor's office said it confirmed that the administration followed the law. An open records advocate from the Kansas Press Association called it "a total repudiation of the Kansas Open Records Act."

Schmidt's analysis hinges on the definition of "public agency." Kansas law considers "any recorded information, regardless of form or characteristics," to be a public record if it is made or maintained by a public agency.

Schmidt contended that state employees, such as Sullivan, do not themselves constitute a public agency. "State employees who send private emails, as previously defined, are not a 'public agency' within the meaning of the KORA," Schmidt states. "Accordingly, these private emails of state employees are not public records subject to the provisions of the KORA."

In other words, an e-mail on a state employee's official account is a public record, while one on his or her private account, regardless of the content, is not. Attorney general opinions serve as a guideline for state agencies in cases where the law is murky.

About half of the states do consider private e-mails by public officials to be public if they deal specifically with public business, as Sullivan's e-mail did.

Eileen Hawley, the governor's spokeswoman, issued a statement reiterating that "we follow all applicable law and regulations in responding to open records requests. This opinion confirms the law concerning certain types of open records requests."

Doug Anstaett, executive director of the Kansas Press Association, said the opinion "essentially says government business can legally take place in the shadows, which I firmly believe most Kansans would reject out of hand."

Hensley said the opinion confirms "there's a loophole in the law, and we ought to close the loophole." Bills attempting to do so have gained little traction.

Hensley said the attorney general's opinion makes the need for change more urgent. The opinion gives "people license to abuse the system. They'll feel like now that his opinion's out that they're covered and they'll go home and use their personal e-mail accounts to conduct state business."

The Brownback administration has said it has no policy on whether state employees can use private e-mail. Hensley said the administration ought to instruct state employees against using private e-mail in face of the legal loophole.

The issue of public officials using private e-mails to conduct official business has generated debate at both the state and federal level, gaining more attention in recent months with the revelation that Hillary Clinton exclusively used private e-mail during her tenure as secretary of state.

(c)2015 The Wichita Eagle (Wichita, Kan.)