Mike Kautsch
Kansas Sunshine Coalition For Open Government
Sunshine Week, March 13-19, 2016, is a time to celebrate the Kansas Sunshine Laws. Under these laws, state and local governments generally must open their meetings and records to the public. Under the Sunshine Laws, Kansans have a right to know how officials are exercising their power and find out what the government is up to.
However, the Sunshine Week celebration this year coincides with rising concern about whether government in Kansas is sufficiently transparent. Open-government advocates are calling upon the Legislature to enact improvements in the Sunshine Laws.
Late last year, the Center for Public Integrity, a nonpartisan, nonprofit organization, gave Kansas a grade of F for transparency. The center flunked Kansas after conducting a national study and concluding that the state did not maintain adequate public access to government information. The F that Kansas received was an abrupt drop from the average grade, a C, that the center had assigned to the state three years earlier.
The center criticized aspects of Kansas government in addition to transparency, and at least one state official reacted by attacking the center’s credibility. Nevertheless, the F for transparency did not necessarily surprise Kansans who in recent years have questioned whether the doors of government are sufficiently open. Here are some examples:
As the Kansas City Star reported in 2013, a Leawood couple claimed that their home wrongfully was subjected to a SWAT-style raid by law enforcement. The couple had to sue, at a cost of $7,000, and fight for a year to open government records that explained why the raid had occurred.
In 2014, KSHB-41 TV in Kansas City aired a report calling Kansas “The Dark State,” saying that a lack of open records “prevents [a] complete picture of many Kansas criminal cases.”
In 2015, the Topeka Capital-Journal described a practice by Kansas legislators to introduce bills “without putting their names on them,” making the Legislature the “most anonymous” in the nation. Also last year, the Salina Journal and other media organizations sued to gain access to information held by the Governor’s office about certain county commission appointments.
Meanwhile, journalists fretted that public agencies often were not responding in a timely way to requests for public records. KWCH 12 TV in Wichita, for example, reported last fall that, after formally requesting the Governor’s schedule, the station waited three months to receive it.
Citizen concerns last year about government transparency resulted in calls for legislation to bolster the Sunshine Laws. The Lawrence Journal-World, editorializing in support of current legislative proposals to improve the Sunshine Laws, said, “Transparency is the key to government accountability.” The Kansas Sunshine Coalition for Open Government continued to encourage all branches of government to be transparent. At the same time, some concerned citizens launched an “Open Kansas Initiative,” urging legislators to make a commitment to openness. At last count, 20 organizations supported the initiative, including the Kansas Press Association and the Kansas Association of Broadcasters.
Here are just three examples of transparency issues on the current legislative agenda:
E-MAILS. Senate Bill 361 would redefine and broaden the term “public record” in the Kansas Open Records Act (KORA). The bill is a response to controversy that erupted last year over e-mails sent by the state budget director to lobbyists. As reported by the Wichita Eagle, the director had sent the e-mails using a private account. The Attorney General then issued an opinion that e-mails exchanged by public employees using personally owned devices and private accounts were not public records under KORA. In Senate Bill 361, the proposed redefinition of “public record” is intended to encompass e-mails about official business regardless of whether they are exchanged by public employees using a personally owned device or private account.
MEETINGS. When government officials conduct a meeting that is open to the public, they sometimes excuse themselves to enter into a closed session. The officials don’t always clearly state their justification for excluding the public. Senate Bill 360 would amend the Kansas Open Meetings Act to require that officials explain specifically why a closed session is necessary.
AFFIDAVITS. Certain statutory amendments in 2014 authorized any person to request a copy of an affidavit that established probable cause for law enforcement agents to arrest a person or search someone’s property. House Bill 2545 would require that, once a judge orders disclosure of an affidavit to a requester, it must be placed in a court file open to the public.
Open-government advocates support these and other proposals as ways to ease public access to government information. If the proposals become law, and if state and local officials work hard to make the Sunshine Laws effective, Kansas could earn a grade of A for transparency and become a model for open government.
Mike Kautsch, a law professor at the University of Kansas, teaches and writes about freedom of information laws and related subjects. In this column, he expresses his personal view and that of the Coalition.