AG’s proposed amendment to KORA would have covered budget director’s emails

AG officeE-mails sent by state budget director Shawn Sullivan from his private account in the fall of 2014 sparked controversy because such 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.”  After that, legislators attempted to amend the Kansas Open Records Act (KORA), but that amendment failed in March.

Yesterday, Attorney General Derek Schmidt proposed an amendment to K.S.A. 45-217 that provides in pertinent part that public records would include any recorded information in the possession of “any officer or employee of a public agency pursuant to the officer’s or employee’s official duties and which is related to the functions, activities programs or operations of the public agency.”  K.S.A. 45-217(g)(1)(B).  It appears to Fresh Takes that the AG has attempted to strike a balance between closing the loophole preventing KORA’s application to private e-mail accounts and respecting privacy concerns of state employees.

It would appear that had this language been in effect at the time Mr. Sullivan wrote his e-mail, that e-mail would have been subject to disclosure because Mr. Sullivan was an employee of the legislative branch, a public agency; he made statements about the budget in an e-mail pursuant to his official duty as budget director; and his email related to the functions of his agency.

Despite the fact that this proposed language would solve the problem with regard to Mr. Sullivan’s e-mails, Fresh Takes takes small issue with the use of the indefinite article “a” before the first reference to “public agency” in (g)(1)(B), and the use of the definite article “the” before the second use of that same phrase.  Those words might limit KORA’s application to emails that concern an employee or officer’s own agency. Fresh Takes can imagine instances where records that are created by an agency’s officer or employee pursuant to his or her official duties and that relate to functions of a different agency should be disclosable public records.

As the goal of this proposed legislation is to close loopholes, it would make sense to broaden the references to “pubic agency” by use of the modifier “any,” so the that (g)(1)(B) should instead provide as follows: “(B) any officer or employee of any public agency pursuant to the officer’s or employee’s official duties and which is related to the functions, activities programs or operations of any public agency” (emphasis added).

Even so, the Attorney General’s proposal, necessitated by the advent of electronic communication in the context of a statute that was passed in the 1980s and still retains much of its original language, is a commendable effort to resolve this gap in access to e-mails that should be public.