Small tweaks to KORA could make email transparency feasible

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As reported by the Topeka Capital-Journal, the Kansas Senate, by a vote of 32-6, recently “rejected an amendment to the state’s open records law Thursday that would have expanded the definition of a public record to include any information on a ‘personal electronic device’ used by a public agency to conduct government business.

The amendment was intended to categorize government officials’ emails as public records when the emails are generated on private accounts but deal with public business. Controversies have erupted recently in Kansas and elsewhere over officials’ use of private accounts, which can prevent emails from being a matter of public record. For example, the state budget director sent email from his personal account regarding the budget to other state officials and lobbyists. The incident which was a major impetus for concern over officials’ email practices, and their emails on private accounts may well remain inaccessible.

The amendment, HB 2300, would have expanded the definition of public records set forth in K.S.A. 45-217(g)(1) of the Kansas Open Records Act (KORA) to include “any recorded information made, maintained or kept on a personal electronic device by a public agency in furtherance of the public agency’s duties related to the functions, activities, programs or operations funded by public funds.” The purpose of the amendment was to prevent government officials from using private email accounts for secret discussions of public business. Under KORA as currently worded, emails exchanged by government officials on private accounts are not classified as open records. They therefore are inaccessible to the public.

Opponents of HB 2300 seemed to get traction because of uncertainty over whether it distinguished official’s personal, private emails from ones that should be open public records. For example, would an official’s e-mail be private rather than open if it were a communication with a baby sitter needed while the official attended a government meeting?

Moreover, HB 2300 does not appear to fit naturally into KORA’s existing structure. In 45-217(g)(1), KORA currently defines public records with reference, not to their content, but rather to their origin or location. Essentially, a record is public only if it was created by government or is in government custody. HB 2300 would retain the original definition and add one that defines a record as public if its content has to do with government business. At the same time, HB 2300 would retain an existing KORA provision, 45-217(g)(2), that exempts from public access all “records which are made, maintained or kept by an individual who is a member of the legislature or of the governing body of any political or taxing subdivision of the state.” K.S.A. 45-217(g)(2).

Thus, if KORA were amended as proposed by HB 2300, the statute would would have two definitions of public records in 45-217(g)(1). Under the first definition, an official’s e-mail would be a public record if it was originated in, or are is held by, government. Under the second definition, the official’s email also would be a public record if it was about government business, even if it was transmitted only through private accounts.

Having two different definitions of public records might work as a comprehensive approach. Yet, it instead might be unnecessarily complicated and confusing. Also, the dual definitions would seem difficult to reconcile with the existing exemption in 45-217(g)(2) for legislators or other members of a governing body. Under this provision, an email by a legislative or governing official is not a public record if it is exchanged only through a private account. Nevertheless, if the email were about government business, it arguably would be a public record under the second definition in 45-217(g)(1).

It appears to Fresh Takes that a solution could be to amend K.S.A. 45-217(g) by changing the definition of public records to be like Tennessee’s TCA 10-7-503(a)(1).  There, public records are “all documents, papers, letters, maps, books, photographs, microfilms, electronic data processing files and output, films, sound recordings or other material, regardless of physical form or characteristics, made or received pursuant to law or ordinance or in connection with the transaction of official business by any governmental agency.”

This definition responds to the concerns of those who opposed HB 2300. Emails of a purely private nature would not be accessible under Tennessee’s definition of public records. Moreover, adopting a definition of public records like Tennessee’s would make K.S.A. 45-217(g)(2) unnecessary, insofar as it exempts records of legislative and governing officials from public access. If KORA were to define public records as Tennessee does, the officials’ emails would already be exempt from disclosure as long as they have nothing to do with government business.  With a definition of public records that focuses on their content, the current loophole in KORA could be closed. Any emails, not just those sent via an agency server, would be subject to an open records request, as long as they relate to government business.  After all, it is the subject matter of the record, not necessarily its origin or location, that should determine whether it is accessible under KORA.

The Legislature should consider revisions to K.S.A. 45-217(g), not only so that it defines public records with reference to content rather than origin or location, but also so that KORA no longer expressly exempts records generated and kept by legislators or others in a governing body. With the line between public and private clearly drawn, that exemption no longer would be necessary. The public would have a mechanism to monitor government activity, and government officials’ privacy on personal matters would be preserved.

Fresh Takes’ proposed K.S.A. 45-217(g):

(g) (1) ”Public record” means any recorded information, regardless of form or characteristics, which either is a) made, maintained or kept by or is in the possession of any public agency or b) made or received pursuant to law or ordinance or in connection with the transaction of official business by any public agency.”

(2) ”Public record” shall not include records which are owned by a private person or entity and are not related to functions, activities, programs or operations funded by public funds.