By Deron Lee, CJR
This article first ran on May 13, 2016 on the Columbia Journalism Review's website.
One day in late January 2015, Bryan Lowry of the Wichita Eagle was at a Mexican restaurant in Topeka, Kansas, when he received an email forwarded from a source. He immediately knew he was onto something big.
“I said, ‘Wow, this is a story,’” says Lowry, the Eagle’s statehouse correspondent.
He was right: Lowry’s article, published by the Eagle the following day, revealed that the state’s budget director had used his personal email account to send two lobbyists a preview of Gov. Sam Brownback’s controversial budget in December of 2014, weeks before the legislature or the public had a chance to see it. The story shed light on the decision-making behind the budget battles that have rocked the state ever since Brownback’s massive tax cuts went into effect in 2013.
But the story also did something else, which Lowry couldn’t have anticipated at the time: It set off a debate in the capitol over a public-records loophole that would extend for two legislative sessions, finally resulting in a major reform that was signed into law by Brownback himself this week. The bill makes clear that private e-mails sent by public officials are subject to disclosure under the open-records law if they pertain to public business.
“We owe him a debt of gratitude for digging into this story,” Doug Anstaett, the executive director of the Kansas Press Association, says of Lowry.
Lowry’s original story wasn’t just about a transparency crusade. The fact that lobbyists were involved at an early state in the budget process was pretty newsworthy in its own right.
But the budget director’s use of a private account pointed to a loophole in the state open-records act and opened up a fruitful line of inquiry. The scoops kept coming in the 2015 session, as Lowry debunked the budget director’s claim that he hadn’t had access to his state email account when he sent the private email, and revealed that Brownback himself had used private email to conduct public business for years.
State lawmakers, meanwhile, began calling for a legislative fix to the private-email loophole—a push that gained bipartisan momentum that March when Hillary Clinton’s email scandal broke. In May 2015, Kansas Attorney General Derek Schmidt put forth a proposal to close the loophole. Legislation was introduced a week later, at the tail end of the session, and in June, Senate leadership asked the Kansas Judicial Council, a state agency that advises the legislature and judiciary on legal matters, to study the issue. The resulting advisory committee report, released in December, provided much of the basis for the bill that was ultimately passed in this year’s session.
“Whether it’s smoke signals or a smartphone”
The thrust of the reform is to shift the focus from the location of a record to its content and purpose.
While the previous open-records law applied to records made or maintained by a public agency, the act will now apply, according to the bill summary, to “any recorded information that is made, maintained, kept by, or in the possession of any officer or employee of a public agency pursuant to the officer’s or employee’s official duties, and is related to the functions, activities, programs, or operations of any public agency.” And it will apply “regardless of the location of the information.”
Adam Marshall, a legal fellow with the Reporters Committee for Freedom of the Press, said the language was well crafted. Removing any potential location-based exemption, he said, is “not something that’s common in public-records statutes, but it’s terrific.” Other states have codified that distinction only after court battles, Marshall added.
Anstaett of the Kansas Press Association, who served on the advisory committee that made recommendations for the legislation, said the location issue was “the key” to the group’s deliberations.
“Whether it’s smoke signals or a smartphone,” he said, the committee determined that “location is not the issue as much as, does the record involve the public business?”
The reform, of course, doesn’t mean that all is well on the transparency front. The loophole revealed by Lowry’s reporting was just one of many reasons cited by the Center for Public Integrity last year for the failing grade it gave Kansas for public access to information. Anstaett says he remains concerned about the high costs that state agencies sometimes charge for access to records. Marshall points out that mechanisms must be put in place to make sure public business conducted on private accounts is stored and searchable. And Lowry says there are still seemingly “a million exemptions in KORA,” the open-records law. In the very same bill that closed the email loophole, the legislature also moved to block media and general-public access to police body-cam footage.
Even as Anstaett’s organization continues to lobby the state on these other fronts, he says, at least for now the new reform “sends a message that you have to do the public business in the light of day, and not try to hide.”
As for Lowry, his reporting over the last 18 months has drawn awards and recognition. But, he said on Wednesday night, hours after Brownback signed the new bill: “Today was really when it hit me hard. Because you think, ‘Something I wrote actually changed the law in Kansas.’”
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