Austin Fisher
KU Statehouse Wire Service
A proposed change to the state’s open records law that would have expanded the definition of public records to include lawmakers’ private emails used for public business failed last week, but it didn’t end the debate.
Doug Anstaett, executive director of the Kansas Press Association, said the amendment’s failure shows that lawmakers enjoy the freedom to operate in the shadows.
“I’m appalled that public officials would say they’re all for transparency and then every time they get a chance to take a vote to increase that transparency they would say, ‘Oh, not me,’” he said.
When Senate Minority Leader Anthony Hensley (D-Topeka) introduced the amendment for debate on the Senate floor, Senate Vice President Jeff King (R­-Independence) said it would invade lawmakers’ privacy.
King asked if a legislator’s correspondence with a babysitter would be considered public record if they needed to leave their child at home to attend a government function.
“I don’t want to know about Sullivan’s babysitter, or his grocery list, or if he’s buying a new car,” said Burdett Loomis, a political science professor at the University of Kansas. “The question is if you make everything private you’re probably throwing the baby out with the bathwater.”
Hensley pushed for the change to close a loophole that allowed Budget Director Shawn Sullivan to use a private email account to share budget recommendations with lobbyists weeks before sharing the plans with lawmakers.
As a KU professor, Loomis is a state employee and said the public should have every right to see when he and his colleagues use private emails for public business.
“There’s always going to be something of a lack of transparency, in many ways that should be the case. Legislators can’t make deals if there isn’t some privacy,” Loomis said. “Just as long as everything comes out in the end.”
In a partisan 32-6 vote, Senate Republicans closed ranks to reject the amendment and keep Kansas among the 24 states that do not treat private emails used for government business as public records.
According to Mike Kautsch, a KU law professor, without a public record of government communications about legislative business, the people of Kansas won’t be able to hold officials accountable for the decisions they make.
“As a consequence, as officials become able to operate in secret without public scrutiny, they are very likely to become abusive of their power and fall into corrupt practices and fall below the standard of good governance,” Kautsch said. “Secrecy always leads to worsening and even tyrannical government.”
Kansas transparency advocates had smaller victories during Sunshine Week, a national initiative to highlight the importance of open government. Senators gave preliminary approval to a series of bills that limit fees for obtaining public records, set up Internet audio streams of committee meetings, and require lobbyists to report any public funds they receive.
It also came as presidential candidate Hillary Clinton faces scrutiny for her use of private emails for official business when she was U.S. secretary of state. House Majority Leader Jene Vickrey (R-Louisburg) said questions about Clinton’s emails don’t apply to Sullivan.
“The difference is, the secretary of state is making decisions that affect our safety around the world,” Vickrey told the Associated Press last week. “Our budget’s very important, but our lives — Kansans’ lives — aren’t at risk. It’s a much different reality.”
King said the email amendment was radical because the existing law contains a definition of public records that is “materially, and I would say substantially, different than this proposed amendment.”
Kautsch says the legal definition of a public record could be easily worded to discriminate between private emails that pertain to public business and those that don’t.
“The problem isn’t in the concept but in the execution to provide a solution to this enormous problem,” Kautsch said.
Anstaett said transparency has taken a back seat to other important issues affecting the state during this combative legislative session but he will be back next year.
“We’re going to keep fighting (for more transparency),” he said.
Austin Fisher is a University of Kansas senior from Lawrence majoring in journalism.