Kansas Governor Signs Bill Opening Public Officials' Private Emails

Gov. Sam Brownback has signed a bill that will make private emails by public officials subject to the Kansas Open Records Act if they pertain to public business.

by Bryan Lowry, The Wichita Eagle / May 12, 2016
Kansas Gov. Sam Brownback flickr/Gage Skidmore

(TNS)Gov. Sam Brownback has signed a bill to close a loophole in the state's open records act that allowed public officials to use private email accounts to avoid scrutiny.

Brownback's office said Wednesday afternoon that he had signed SB 22, a bill that will make private emails by public officials subject to the Kansas Open Records Act if they pertain to public business.

That means news outlets and citizens will be able to request them.

Sen. Molly Baumgardner, R-Louisburg, one of the law's main proponents, said this would strengthen the media and public's ability to serve as "that fourth portion in the checks and balances."

Under the previous law, the public could obtain only emails sent to or from an official's government account.

The issue came under scrutiny last year when The Eagle reported that Brownback's budget director, Shawn Sullivan, had used a private email account to send two lobbyists a draft of the state's budget several weeks before it was unveiled to lawmakers.

The Eagle's reporting helped spur reform efforts by lawmakers from both parties. The bill to close the loophole passed the Legislature unanimously late last month.

Brownback's spokeswoman, Eileen Hawley, said in an email that the governor's office "followed the law that was in place when Governor Brownback came into office, and now our office will continue to follow the new law he signed today."

Attorney General Derek Schmidt, who played a key role in crafting and advocating for the policy change, said it would help "bring the Open Records Act into the 21st century."

Shining a light

Doug Anstaett, executive director of the Kansas Press Association, called it a "great day for open government in Kansas."

Anstaett said he has been suspicious for a long time that a lot of government business was done through private email on devices at both the state and local level. The new law will enable citizens and news organizations to investigate that, he said.

"I think it opens a door that has been closed for a long time. We've had people who would just keep this information secret simply because they thought they could," Anstaett said. "Now if they do it, we've got the law on our side. The law will open this information up and those public officials who try to operate in secret, the light will be shined on them."

Controversy surrounding Democrat Hillary Clinton's use of a private email server as U.S. secretary of state helped generate bipartisan support for reforming the law in Republican-leaning Kansas, Anstaett said, because it showed "that we weren't picking on one party over the other."

Rep. Jim Ward, D-Wichita, served on a state panel last year that investigated how other states were grappling with the issue and crafted the reforms.

The panel realized the open records act defined records as "basically a hard piece of paper and their location was what determined whether they were public or not" and that the law needed to be updated for the digital age, he said.

"We live in a world now where paper is very much a dying thing and it's all electronic, so it's really the content that we have to look at," Ward said.

Baumgardner, who led that panel, said lawmakers wanted to ensure that the reforms could "be applied in even the smallest jurisdiction."

'More to be done'

Baumgardner noted that this is one of several transparency reforms passed by the Legislature this session.

Brownback has yet to act on two other items. The budget bill includes a provision to enable the live-streaming of committee hearings during next year's legislative session.

Another bill would make the Kansas Supreme Court Nominating Commission subject to the Kansas Open Records and Kansas Open Meetings acts. It would also require the governor to disclose the names of applicants for the Court of Appeals.

Ward said that there are many other transparency measures that the Legislature needs to pursue in the future, including tightening the regulations around lobbying and closing other loopholes in the open records act.

"I don't want folks to just say, 'OK, we're done. We did a bill last year. We're done.' No, there's much more to be done," he said.

The bill also includes language that will define police body camera videos as criminal investigation records. They won't be open the entire public — which is what transparency advocates wanted —  but they will be accessible to people who are the subject of a recording and their attorneys.

(c)2016 The Wichita Eagle (Wichita, Kan.)