Kansas’ attorney general said Tuesday that emails sent by state employees through private accounts aren’t public record, even when they deal with public business.

Attorney General Derek Schmidt was responding to a question from state Sen. Anthony Hensley about whether such an email would constitute public record. Schmidt, who interpreted “private email” to be an email sent not only through a private account but also on a private device, replied: “In short, we think the answer is ‘no.'”

Schmidt had already established in a different opinion that emails in the possession of public agencies are open records, his opinion said. But Schmidt wrote that individual state employees don’t constitute a “public agency” as defined by the Kansas Open Records Act.

Hensley’s inquiry was in response to reporting that showed Kansas Gov. Sam Brownback’s budget director had sent a draft of the state budget via private email weeks before it was publicly revealed.

In response to Schmidt’s decision, Kansas Press Association Executive Director Doug Anstaett released a statement: “This decision essentially says government business can legally take place in the shadows, which I firmly believe most Kansans would reject out of hand,” it read in part.

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