Kansas Attorney General Derek Schmidt grants a license to secrecy

With a preposterous opinion, Kansas Attorney General Derek Schmidt has created an opportunity for each and every state employee to operate behind a curtain of secrecy.

It is OK to conduct public business on private e-mail accounts, the attorney general said. And the correspondence need not be subject to the Kansas Open Records Act.

The implications of this flawed logic are breathtaking. Schmidt is encouraging all public officials in Kansas to follow Hillary Clinton’s disgraceful example as U.S. secretary of state and use private email addresses to keep important business out of the public eye.

Democratic legislators sought the opinion after news accounts revealed that Shawn Sullivan, Gov. Sam Brownback’s budget director, used his personal e-mail address to give top administration officials and two well-connected lobbyists a sneak peak at next year’s budget. They learned the details three weeks before the Legislature did.

Schmidt’s opinion acknowledges that Kansas law defines a public record as “any recorded information, regardless of form or characteristics, which is made, maintained or kept by or is in the possession of any public agency.”

But he says individual employees are not public agencies, and therefore not subject to their requirements.

Talk about splitting hairs. Obviously the people who work for state agencies are part of those agencies, if not exactly agencies themselves. The idea that they can operate under a different set of rules is an affront to good government.

Under Schmidt’s interpretation, officials can now communicate privately and make important decisions without worrying about leaving a public record. They can enlist special interests in shaping the public’s business, as Sullivan did, outside the public eye. Schmidt’s ruling could easily extend to text messages and other forms of electronic communication.

The Brownback administration clearly regards Schmidt’s license to secrecy as a victory. “We follow all applicable law and regulations in responding to open records requests,” a spokeswoman said. In other words, get ready for more of this secrecy.

If Kansas legislators care about open government, they will take action immediately to close this phony loophole. Lawmakers understand that the intent of the Kansas Open Records Act is to make the public’s business more transparent, not less. They need to make that clear to Brownback and his appointees.

This story was originally published April 29, 2015 at 5:23 PM with the headline "Kansas Attorney General Derek Schmidt grants a license to secrecy."