Gov. Sam Brownback uses a private email address to communicate with his staff and others, meaning many of his communications would fall outside the bounds of Kansas’ open records law.
The governor’s use of private email came to light after The Wichita Eagle requested email records from top administration officials. The governor’s office released those records last week.
In the records, the governor’s staffers used government emails, while Brownback used a private email address. Eileen Hawley, the governor’s director of communications, confirmed that Brownback uses a private email address.
“The governor prefers to communicate in person or on the phone whenever possible,” Hawley said in an email. “However, when he does use email, he uses a personal email account. Email sent by the governor to staff usually comes to those staff members’ state accounts.”
The governor has previously said he uses a private cellphone instead of a state-issued one, meaning his cellphone records are not public records. He said he prefers to pay for the phone himself rather than charge the state.
The Eagle reported in January that Brownback’s budget director, Shawn Sullivan, had used a private email address to send a draft of the state budget several weeks before it was released to lawmakers.
Rep. John Carmichael, a Wichita Democrat, called the governor’s use of private email a cause for concern.
“The purpose of the open records act is to provide for sunshine and open government — not government done behind closed doors in the proverbial smoke-filled room,” Carmichael said. “And what we see here is an example of the people’s business being done in an electronic smoke-filled room behind closed doors.”
He said that if public officials are using a private email account to skirt open records laws, “then the question becomes, what else are they doing that we can’t find out about?”
Attorney General Derek Schmidt, a Republican, recently issued an opinion stating that private emails from public officials fall outside the bounds of the Kansas Open Records Act as it is written.
Brownback’s emails to staff would be public records if the staff member were on a government account. But a news outlet or a person could obtain those records only by knowing which staffer Brownback had emailed and on what date.
The governor’s emails could not be requested directly, making it significantly more difficult to search for the records.
“You don’t know how to target what you’re looking for,” said Doug Anstaett, executive director of the Kansas Press Association.
The governor’s communications on private email with people outside of government would not fall under the open records law at all.
Attorney general’s opinion
Schmidt recently recommended that lawmakers fix the private email loophole. Two bills, SB 306 and SB 307, already have been introduced based on those recommendations.
Schmidt’s proposal would essentially make any email that public officials send within the course of their duties subject to the open records law, while other emails would remain exempt. He said that would balance the importance of open government with public employees’ right to privacy.
“In my view, it should not be lawful to circumvent open government laws by conducting public business on private e-mail accounts,” Schmidt said in an email, speaking generally. “At the same time, the First Amendment (and, in some applications, perhaps the Fourth Amendment) prevents the state from intruding too far into the world of its employees’ private communications.”
When first asked about Schmidt’s proposal, the governor’s office said it did not respond to hypothetical situations.
“To see that this is how the governor does business takes it out of the realm of hypotheticals into very much a reality situation,” Anstaett said. “It’s appalling that the state’s highest officer thinks operating outside the public realm is his right and he believes that’s the best way to conduct public business.”
Asked about the governor’s email communication, Hawley had initially pointed to firstname.lastname@example.org, a general email address for the governor’s office, before acknowledging the governor’s use of private email. In the records obtained by The Eagle, Lt. Gov. Jeff Colyer uses private and state email addresses to communicate with staffers.
The governor and Colyer’s private addresses are redacted in the records with thick, black ink. Their names appear followed by a dark line obscuring their addresses. The governor’s office cited an exemption in the open records law that protects information of “personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy.”
Revising the law
Senate Minority Leader Anthony Hensley, a Topeka Democrat, said the governor’s reliance on a private email address is “further evidence that we have got to close this loophole” in the law.
“He is hiding from the open records requirements that are in the law and it would appear he’s doing it intentionally. … That’s very inappropriate that an elected official is using his private email to conduct state business,” Hensley said.
Hensley said that the governor sets an example for the rest of the administration and called this a poor one.
“Why would you expect Shawn Sullivan to behave any other way when his boss is basically doing the same thing?” Hensley said.
SB 307 has been referred to the Senate Committee on Federal and State Affairs. Hensley said that Republicans who hold the majority in the Senate should support its passage.
The Brownback administration’s use of private email comes as Democrats are being criticized about the issue on the national level with revelations that IRS officials used private email to conduct official business and that Hillary Clinton exclusively used private email during her tenure as secretary of state.
The Kansas Republican Party has frequently attacked Clinton for her use of private email. Clay Barker, executive director of the Kansas Republican Party, earlier had said that there’s a major difference between Sullivan’s occasional use and Clinton’s exclusive use.
“I can’t speak for the governor,” Barker said. “I don’t know what the rationale was. Maybe he just didn’t want his email address out there so he gets pounded with stuff. You know, wasn’t trying to hide anything. But that’s just speculation on my part.”
Barker also said that Clinton fell under federal regulations and State Department rules, whereas Brownback was within the bounds of Kansas law.
“It’s two different sets of rules,” he said.
However, Barker said, he agrees with Schmidt that the state’s open records law needs to be updated for the digital age.
“They were written for paper. And it’s hard to pound the square peg of paper into the round hole of electronic. … So I would say they definitely need to be revised.”