The Senate Judiciary Committee heard testimony on legislation designed to close the loophole that allowed for state business that was conducted on private e-mails to avoid inclusion in the public record as defined by the Kansas Open Records Act.
Kansas Attorney General Derek Schmidt issued a 2015 opinion stating that e-mails sent to and from private e-mail addresses on private computers are not public documents and not subject to the Kansas Open Records Act.
Attorney General Schmidt spoke as a proponent of the new legislation. His office will also be tasked with enforcing that legislation should it pass.
With that dual purpose in mind, Schmidt said, “The policy choice is simple and straightforward. The policy choice is, should it be possible for public officials or employees to use private communications devices and thereby elude the requirements of the public records law? The policy is not difficult to understand. The problem is that by the nature of these communications, when public communications occur intermingled with private communications on a private device, it then becomes necessary to have legal tools for sorting out the wheat from the chaff.”
In fact, that sorting process is so complicated that Senator Jeff King, chair of the committee, is going to wait to work the bill at least until next week. The committee is waiting so that some inconsistencies in the language can hopefully be worked out so that the interpretation of what is in, or public communication, and what is out, or private communication is clearer once the bill leaves the committee.
Schmidt adds, “That problem doesn’t exist when all the communications are on a public server or a public e-mail account. But, it does when personal, private matters are intermingled with public records in a single inbox. It becomes very challenging to draw that line in a way that respects privacy and also respects the public’s right to know, and that’s what the committee’s wrestling with.”
In fact, the boundary is hard to see, let alone draw, once you’re on a private device, according to Schmidt.
Schmidt said, “Once you cross that threshold of saying that requirement for openness applies to records that are privately created and privately owned, merely because of some or all of their content that has to do with public business, then you wade into a more difficult area where First Amendment interests and privacy interests start to attach. I think it’s necessary as a matter of policy, but if that’s to be the policy, then it’s not as simple as merely drawing a line.”
Nevertheless, having the discussion is a positive step.
Schmidt said, “I think the spirit of open government in Kansas is alive and well. Even in the era of new private communications technology, that spirit shouldn’t change. The public’s business ought to be subject to public scrutiny, and public retention and public review, regardless of where or how it’s communicated. That principle, I think, we need to find a way to apply in the very difficult circumstance of rapidly changing and wildly diverse methods of communicating information that didn’t exist 20 years ago.”
Technology continues to change, and with those changes comes the expectation of the public to have access to anything generated with their money. Attorney General Schmidt hopes that the changes that are proposed, if enacted, can be flexible with the continuing changes in technology.
Regarding the proposed statute, Schmidt said, “Ideally, it would be written broadly enough to apply to technology as it evolves as opposed to one set of rules for Twitter, and one set of rules for email and one set of rules for texts, etc. The challenge that makes it very difficult, what the committee’s doing a fine job of wrestling with is that the broader you write the requirement for disclosure, the greater risk there is that the government’s demand that its employees disclose things they have written down, will impermissibly chill those public employees First Amendment speech rights. That’s the hard balance that you have to wrestle with here. It’s one of those awkward situations where openness is actually in conflict with openness and the legislature is trying to sort through where the balance is.”