Will lawmakers propose KORA tightening over email issue?

By Bryan Lowry, Wichita Eagle

Gov. Sam Brownback says he doesn’t know how often members of his staff use private e-mails to conduct official state business. He mostly uses his private cellphone rather than a state-owned one.

“I have no idea how often staff does private e-mails. I don’t have any idea,” he said Friday. “I use my cellphone to communicate with most of the time on almost anything.”

The governor’s comments come after The Eagle reported that state budget director Shawn Sullivan had used a private e-mail account to send a draft of the state budget to two lobbyists and several top administration officials two days before Christmas.

Politicians and public officials from both parties nationwide have been able to avoid – intentionally or accidentally – scrutiny for their decisions because of loopholes in open records laws when it comes to private e-mail accounts and electronic devices.

Senate Democrats in Kansas said they plan to introduce a bill this week aimed at closing loopholes. Some Republican lawmakers said they would be open to legislation that makes private communications public records when they pertain to state business.

“There’s a transparency issue here that ought to be considered,” said Rep. Don Hineman, R-Dighton.

Hineman questioned the administration’s commitment to transparency and said Sullivan’s explanation that he used private e-mails because he was home for the holidays “doesn’t pass the smell test.”

“I personally have access to my state e-mail account on all my electronic devices wherever I am at any time of day. And I assume that’s true for practically everyone in state government. You’re never at a loss for access to your official state e-mail account,” Hineman said.

The governor’s office said the use of private e-mails to collect feedback on the budget was not an attempt to purposefully skirt the Kansas Open Records Act.

Subverting ethics laws?

Open records laws – sometimes known as sunshine laws – are meant to ensure public accountability. But many states, including Kansas, have no official position on whether they apply to private communications by public officials about state business.

This leaves the public vulnerable, said Emily Shaw, national policy manager for the Sunlight Foundation, a national group that promotes accountability in government.

“Any laws that could have loopholes that prevent the public from seeing all of the lobbying that’s going on, that’s also subverting the ethics laws we put in place to protect the public,” she said.

States across the country are grappling with the issue, as is the federal government.

A case before the California Supreme Court will determine whether communications by public officials should be exempt when they’re on private devices; at least 26 states have amended their open records laws to extend to private e-mail accounts.

In Washington, congressional Republicans have accused the Obama administration of using private e-mails to skirt the federal Freedom of Information Act. The U.S. House passed a bill in September to prohibit IRS officials from conducting official business on private e-mail accounts in response to the use of private e-mail by Lois Lerner, the former IRS official accused of unfairly targeting conservative tax-exempt groups.

“The fact that our laws haven’t caught up with the technological change doesn’t mean we shouldn’t have access to it,” Shaw said. “Changing your e-mail account, everybody knows, is just a matter of clicking over another tab. So that hardly qualifies as a legitimate reason to call something private.”

Legislators left out

The discovery that Sullivan shared the budget with lobbyists via a private e-mail account rankled some members of the governor’s own party.

Senate President Susan Wagle, R-Wichita, defended the governor’s right to have private communications, but she also showed frustration that lobbyists got to preview the state budget before lawmakers.

“Everyone has a right to an inner circle and personal communications that can be kept in confidence. In this case, I wish his inner circle included more legislators … since we are the ones who ultimately vote on his proposals and make tough decisions,” Wagle said in an e-mail.

The two lobbyists, David Kensinger and Mark Dugan, are former staffers of Brownback, but some lawmakers have called their inclusion on budget discussions inappropriate. The governor said he sought counsel from a broad number of people on the budget and the pair offered frank advice.

Senate Minority Leader Anthony Hensley, D-Topeka, said the use of personal e-mails and private phones showed the administration’s disregard for the spirit of the state’s open record laws.

Scope of use unknown

Eileen Hawley, the governor’s director of communications, said she had no way of knowing how widespread use of personal accounts or electronics for official business is within the Brownback administration.

“I don’t know. Because we don’t have a policy that says, oh good, everybody join in and use your personal e-mail. I have no idea who’s using personal e-mail. There is no way for us to scope that out,” Hawley said.

Asked if there was any prohibition against private e-mail for state business, she responded, “Why would there be?”

Doug Anstaett, executive director of the Kansas Press Association, called the lack of a specific policy in the administration troubling.

”That indicates they’re leaving it up to each individual and really this ought to be a hallmark of public officials that applies to everybody, not giving individuals the option of opting out of what’s really expected by the public,” Anstaett said.

“Public business ought be taking place in public and those e-mails ought to be taking place on their public e-mail address … to use private e-mail to circumvent KORA is unacceptable not only I think to the Press Association but to the public in general,” he said. “They don’t like for secrecy to be the way that government business is conducted. And I think if you’d ask the average Kansan they’d agree that this ought to be done in public.”

It’s ‘just about convenience’

Senate Majority Leader Terry Bruce, R-Hutchinson, said he didn’t think Sullivan was intentionally trying to avoid the open records law.

“I don’t think most people are just trying to silence anything,” he said. Bruce explained that he sometimes receives e-mails to his personal account about state business or text messages because those are the fastest ways to get in contact.

“I got to think in most cases it’s just about convenience,” he said.

However, he’s open to reviewing the state’s current policies to ensure that official state business is a matter of public record.

“I mean what’s happened is technology has just advanced at such a rapid pace … and some people you just can’t get by one e-mail or the other. It’s just about what’s most convenient,” he said, explaining that lawmakers should work to make sure there are clear guidelines.

“Just because it’s hard to draw a line doesn’t mean there shouldn’t be one,” he said.

For his part, Brownback was resistant to the idea of extending the state’s public record laws to include communications on private devices.

The governor said he could probably get a state-issued phone if he wanted, but that he prefers to use his own.

“But then I got to think, OK, if I’m calling my wife (on a state-issued phone), is that state business or personal business, so, look I’ll just pay for it. It’s easier that way,” he said.

His use of a private phone means that there won’t be an accessible record of his communications with lawmakers, lobbyists, industry leaders and others on state business.

Hensley said he has been able to request the records of state officials’ state-issued phones in the past and that Brownback’s apparent exemption raises questions.

“When you’re governor, you shouldn’t be concerned about what’s easier. You should be concerned about what’s right,” he said.