Kansas attorney general says public business on private email isn’t subject to open records law

Public officials in Kansas can conduct public business on private emails without that correspondence becoming public records, Attorney General Derek Schmidt said Tuesday.

Schmidt’s opinion comes after The Wichita Eagle reported in January that Gov. Sam Brownback’s budget director, Shawn Sullivan, had used a private email address to send top administration officials and two lobbyists with ties to Brownback a draft of the state budget three weeks ahead of its public unveiling.

Senate Minority Leader Anthony Hensley, a Topeka Democrat, asked Schmidt in February for an opinion on whether emails sent by a public official from a private email address on a personal electronic device are subject to the Kansas Open Records Act.

“In short, we think the answer is ‘no,’” Schmidt wrote in the opinion issued Tuesday.

Eileen Hawley, the governor’s spokeswoman, issued a statement stating the “opinion confirms the law concerning certain types of open records requests.”

Doug Anstaett, executive director of the Kansas Press Association, said the opinion “essentially says government business can legally take place in the shadows, which I firmly believe most Kansans would reject out of hand.”

Schmidt’s analysis hinges on the definition of “public agency.” Kansas law considers “any recorded information, regardless of form or characteristics,” to be a public record if it is made or maintained by a public agency.

Schmidt contended that state employees, such as Sullivan, do not themselves constitute a public agency.

“State employees who send private emails, as previously defined, are not a ‘public agency’ within the meaning” of the open records law, Schmidt stated. “Accordingly, these private emails of state employees are not public records subject to the provisions of the (law).”

In other words, an email on a state employee’s official account is a public record, while one on his or her private account, regardless of the content, is not. Attorney general opinions serve as a guideline for state agencies in cases where the law is murky.

About half of the states consider private emails by public officials to be public if they deal specifically with public business, as Sullivan’s email did.

Hensley said he was not surprised by Schmidt’s conclusion.

“It confirms what we already know, that there’s a loophole in the law, and we ought to close the loophole,” he said.

He and Rep. Jim Ward, a Wichita Democrat, have offered legislation to change the law, but it has gained little traction.

Hensley said the attorney general’s opinion makes the need to close the loophole more urgent. The opinion gives people “license to abuse the system. They’ll feel like now that his opinion’s out that they’re covered and they’ll go home and use their personal email accounts to conduct state business.”

The Brownback administration has said it has no policy on whether state employees can use private email. Hensley said the administration ought to instruct state employees against using private email in the face of the legal loophole.

The issue of public officials using private emails to conduct official business has generated debate at the state and federal levels, gaining more attention in recent months with the revelation that Hillary Clinton exclusively used private email during her tenure as U.S. secretary of state.

This story was originally published April 28, 2015 at 4:56 PM with the headline "Kansas attorney general says public business on private email isn’t subject to open records law."