By Bryan Lowry
Gov. Sam Brownback said Monday that he's been using a private cellphone and private e-mail accounts for official communications since he was a member of the U.S. Senate.
The Eagle reported Sunday that Brownback uses a private e-mail address to communicate with staff members on official state business. Brownback defended the practice during a bill-signing ceremony Monday.
"Most of the time I call people or I just go over to their office. That's how I do most of my communication," Brownback said Monday. "And if I communicate in e-mail, it's directly to their state accounts, I mean, that I know of. There may be some that are different. But that's how most of the communication's done. Most of the communication's done orally or over the phone."
Attorney General Derek Schmidt recently issued an opinion that says private e-mails from public employees concerning public business are not public records because of a loophole in the Kansas Open Records Act. That issue came to light after The Eagle reported in January that Brownback's budget director, Shawn Sullivan, used a private e-mail address to send a draft of the state's budget to two lobbyists with ties to Brownback.
But Schmidt's opinion might not exempt Brownback's e-mails, The Eagle's attorney, Lyndon Vix, said Monday. A footnote in the opinion differentiates between state employees and officers. Therefore, Schmidt's opinion concerned only state employees and not state officers such as the governor, Vix said.
That "leaves a crack in the door" that Brownback's e-mails might be subject to the open records act, Vix said. That is a gray area unless the attorney general issues another opinion stating it explicitly either way, meaning that some of Brownback's communications might fall outside the open records law unless he's corresponding with another person who's using an official government account.
Asked to clarify whether the opinion applies to the governor and other state officers, the attorney general's office would not answer directly and said the opinion speaks for itself.
Private phone also
The governor also uses a private phone rather than a state-issued one. Brownback confirmed that this practice for both phone and e-mail dates back to his time as a U.S. senator.
"It started for me quite a while back when I had at one time a federal phone and a private one, and then I always had to remember, 'OK, now I'm calling home, let's see, I've got to get the right one.' So I thought, 'Look, I'll just pay for all of it. Deal with it myself,' " Brownback said. "Then I can use it as my private one in making personal calls home. I call my parents. I have friends that I stay in touch with. Just a simpler way to do it."
Brownback's disclosure of his private e-mail and cellphone use drew mixed responses from lawmakers.
Rep. John Carmichael, D-Wichita, called the governor's private e-mail use and the revelation that it dates back to his time as a senator "very disturbing."
"I cannot understand why if you have available to you an official e-mail account for the conduct of public business, you would not want to conduct your public business on a state, or for that matter, a federal e-mail account," Carmichael said. "The only reason that I can conceive of is that you're engaging in communications that you do not want to be discoverable or obtained through an open records request."
Carmichael said he uses his state e-mail account for public business and switches to his personal e-mail account for personal and political business. State ethics rules restrict the use of state e-mail for political purposes, such as campaigns.
Rep. Barbara Bollier, R-Mission Hills, said the governor's actions speak for themselves.
"Citizens should be able to get anything their governor does that's official business," Bollier said. "That's my opinion."
However, Rep. Mark Hutton, R-Wichita, was more sympathetic to the governor.
"I appreciate where people are coming from, but where does it stop? You want to put a microphone on me 24/7 and so everything I do and say while up here or even in Wichita is public record and has to be gleaned out?" Hutton said. "Every businessman will tell you there are times where you have to have a confidential conversation with somebody to understand really where they're at. That doesn't mean that you're trying to hide anything or screen anything."
Loophole in law
Earlier this month, Schmidt sent the Legislature recommendations for closing the private e-mail loophole in the open records law.
Senate Vice President Jeff King, R-Independence, who chairs the Senate Judiciary Committee, said he would submit a request to the Kansas Judicial Council to study the issue during the break between this and next session.
Kansas is not the only state grappling with the issue. About half of the states consider private e-mails from public officials to be public records when they deal with official business.
Democratic presidential candidate Hillary Clinton has received widespread criticism after the New York Times revealed she exclusively used a private e-mail server during her time as U.S. secretary of state.
President Obama signed changes to the Federal Records Act in 2014 that say federal officials can use private e-mail addresses only if they copy or forward messages to their official federal account.
King said Kansas should take a few months to study how other state governments have resolved the competing interests of privacy for public officials and public access to records before moving forward with legislation.
"This is a national issue. It's something that Kansas can be at a forefront of making sure we protect the privacy of government officials while making public records available," King said. "You've got to balance the reasonable privacy rights of people who run for office ... with the public's right to know information about how their government's run. I think those two competing concerns aren't something you can resolve in a week."
Carmichael said lawmakers shouldn't wait until the next session to act. "I cannot see any good reason why we shouldn't proceed with legislation along the lines of what the attorney general's office has suggested," he said, noting that bills based on Schmidt's recommendations have already been introduced. "I cannot see why we can't move forward this session. ... Stonewalling the people's right to know what the governor and other public officials are doing on their behalf is something we shouldn't stand for."
(c)2015 The Wichita Eagle