United States Project

Open-records laws could get a much-needed boost in Kansas

May 15, 2015

Open-government reforms in Kansas are starting to become a regular thing—and the media can claim a good chunk of the credit.

Last year, some inspired coverage by reporter Karen Dillon played a key role in changing state law to open up police records to the public.

This year, the efforts of journalists and media associations have again prompted legislative action to strengthen the state’s open-records laws—though those reforms haven’t crossed the finish line yet.

On Thursday, Republican state Sen. Molly Baumgardner introduced a bill, modeled on recommendations from state Attorney General Derek Schmidt, that would make emails by public officials about public business subject to the state’s open-records law, even if they are sent from private accounts.

The proposal to close the email loophole comes after a separate bill giving the state attorney general expanded powers to enforce the open-records and open-meetings laws overwhelmingly passed both chambers of the legislature late last week.

Both reform measures have connections to the media, though in different ways.

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Baumgardner’s bill arose from a controversy ignited by Wichita Eagle statehouse correspondent Bryan Lowry, who revealed in January that Gov. Sam Brownback’s budget director had used his private email account to communicate with lobbyists about the administration’s budget deliberations weeks before the (highly fraught, and highly consequential) details were revealed to lawmakers.

Months earlier, Lowry noted, the Eagle had made an open-records request for email and phone communications between the governor’s office and one of those same lobbyists, a former aide to Brownback who had gone on to work for the conservative Club for Growth and other groups. Under current state law—which applies to records made or maintained by a public agency, not by public officials themselves—emails sent from private accounts did not appear to be covered by such requests.

After the Eagle obtained the email from another source, the budget director told Lowry that he had used his private account simply because he had been home for Christmas—but whatever the intent, the incident revealed an apparent loophole.

Lowry’s reporting “illustrated a huge gap in the public-records act,” says Doug Anstaett, executive director of the Kansas Press Association, which has waged transparency battles in the state for years. “We already have enough trouble getting people to observe the law as it is.”

The Eagle story prompted state Democrats to ask Schmidt, the Republican attorney general—who was editor of his student newspaper in college and once had an internship with the Kansas City Star—to evaluate whether emails sent on private servers could be subject to the open-records law. In April, Schmidt issued an opinion stating that they were not—and found himself facing a wave of criticism from the press.

The AG soon announced that while his opinion stood, he believed the statute was outdated. Last week, he put forth a proposal to close the loophole.

“In my view, it should not be lawful to circumvent open-government laws by conducting public business on private email accounts,” Schmidt told CJR in an email, though he emphasized that public officials’ rights to privacy and free speech needed to be protected in any legislative fix.

Schmidt’s proposal formed the basis for the bill introduced Thursday by Baumgardner, the state senator. Baumgardner does not expect the bill to move this session, which is nearing its end amid a contentious tax debate. But, she says, “I thought it was important to get it out there.” She expects it to be discussed in interim-session committee hearings this summer.

Passage remains far from certain. But the Eagle’s Lowry told CJR on Wednesday—before the bill was introduced—he believes that if a reform bill makes it through the committee process, “it’d have a pretty good shot at passing.”

The fact that, nationally, private email controversies have ensnared politicians from both parties—Republicans such as Brownback and Florida Gov. Rick Scott, but also Hillary Clinton, the presumptive Democratic presidential nominee—may give the bill a bipartisan boost.

Meanwhile, another open-records bill in Kansas already has attracted bipartisan support. A measure enhancing the attorney general’s power to enforce transparency laws passed easily last week, and Brownback is expected to sign it.

That bill arose not from a news report, but, in part, from the lobbying efforts of media groups like the Kansas Press Association and Kansas Association of Broadcasters, as well as the Kansas Sunshine Coalition. More than a year ago, the groups went to Schmidt asking him to take a stronger hand in enforcing complaints related to the open-records and open-meetings laws.

“What we were finding was that, particularly in small towns, the county or city attorneys were accountable to the guys who made the violation,” said Kent Cornish, president of the Kansas Association of Broadcasters.

“We kind of have this black hole that these cases fall into,” said Anstaett, of the press association. “A lot of complaints just get canned.”

Currently, the only recourse for a member of the press or the public in such a case is to pursue legal action. “That’s expensive,” Anstaett says. “Newspapers are shying away from that, members of the public shy away from it.”

The media advocates wanted the attorney general to step in—and they found a receptive audience in Schmidt, who said the current enforcement mechanisms are “inefficient and ineffective.” His office drafted legislation granting itself more transparency-enforcement powers. A bill was introduced in 2014 but went nowhere; a revised version appeared this year and was approved.

Under the bill, the AG’s office may enter into a consent order with the public agency accused of being in violation of the law, or issue a finding of violation and pursue penalties with the approval of a district court. The bill would also establish a fund for enforcing the transparency laws and educating public officials on compliance; money for the fund would come from financial penalties for transparency violations.

While the bill opens up new paths for accountability, it could eventually lead to another set of questions. Even if Schmidt is effective in the role, he will not be AG forever. And open-government advocates have not always found state attorneys general—who act as counsel to some of the very agencies that might violate transparency laws—to be the ideal enforcers.

In Iowa, open-records enforcement was placed in the hands of a new public information board in 2013—partly because that state’s attorney general was perceived as indifferent or even hostile to complaints about transparency. (The new board has itself faced criticism at times from transparency advocates and the press.)

And in Ohio, the state auditor, defying objections from legislators, has recently begun a program to resolve open-records complaints against state agencies. There, the attorney general offers a similar program, but it is limited to complaints against local agencies, as the AG’s role as legal counsel to state offices may create a conflict of interest.

Schmidt, for his part, dismissed conflict-of-interest concerns in Kansas. “Because the attorney general’s office has numerous duties assigned to it by law, we are accustomed to dealing with potential conflicts of interest and ensuring we can fulfill our various obligations,” he said.

In the end, there may be no perfect enforcement solution. Whether the problem is a rural county withholding an investigation record, or a state official circumventing sunshine law via private email accounts, government transparency has been and will continue to be a moving target. In Kansas, we can only hope that the media maintains the same vigilance that has helped to bring about some positive change in the last few years.

Deron Lee is CJR’s correspondent for Iowa, Missouri, Kansas, and Nebraska. A writer and copy editor who has spent nine years with the National Journal Group, he has also contributed to The Hotline and the Lawrence Journal-World. He lives in the Kansas City area. Follow him on Twitter at @deron_lee.