Oh, to be a fly on the wall behind the closed doors of Gov. Sam Brownback’s office during the final week of a contentious legislative session.
What the governor says in private — let alone what he thinks about the session — probably will remain a gubernatorial mystery.
But aside from his public comments, there is an electronic trail in the form of emails and text messages the governor sent and received during the legislature's final week. Whether the public will get a peek at that trail, however, is unclear, following an unresolved Kansas Open Records Act request filed by the Journal-World several months ago.
In June, the Journal-World filed a request with the governor’s office for all emails and text messages sent from and received by Brownback’s state email account and state-issued cell phone between May 14 and May 20, the week of the state legislative wrap-up session.
That request was originally denied, as a spokeswoman for Brownback said the governor had neither a state email account nor state cell phone.
“The governor does have a personal phone. However, he relies on staff for official communications,” said Sherriene Jones-Sontag, a Brownback spokeswoman.
The Journal-World then amended the request to include emails or text messages sent from any Brownback-owned accounts that the governor “uses to conduct state business.”
In August, the Governor’s office filed a formal request for a Kansas Attorney General’s opinion on the issue based on the “unique nature of the request and the lack of legal guidance from the courts or other authorities.”
The Attorney General’s Office, by statute, is tasked with monitoring compliance of the Kansas Open Record’s Act, and issues opinions on murky legal questions regarding the law.
According to the Kansas Open Records Act, “Public records are defined as any recorded information, regardless of form or characteristics, which is made, maintained or kept by or is in the possession of any public agency.” The act is not restricted to written communication, and includes records such as video or audio recordings.
During the past two months, Attorney General’s Office has not responded to numerous emails and voicemails from the Journal-World seeking updates on the request.
Numerous other states have dealt with similar requests for gubernatorial emails and texts during the past several years and, in general, openness of the records usually wins, said Gene Policinski, executive director of the Freedom Forum, a Washington, D.C.-based nonpartisan First Amendment advocacy organization.
For instance, in 2008, numerous media organizations requested the emails of then-Alaska Gov. Sarah Palin, who had just been tabbed as Sen. John McCain’s Republican presidential running mate. After a two-year delay, and following an initial cost estimate by Palin’s office of $15 million for the records, the emails were released in 2010 at a cost of less than $1,000. They were eventually posted in an electronic archive.
It comes down to the distinction between personal communication and communication being conducted in the public interest, regardless of which account the communication comes from, Policinski said.
“When public officials conduct official state business, they should be open for the public,” Policinski said.
The previous two Kansas governors, Kathleen Sebelius and Mark Parkinson, both had state-issued email accounts, said Douglas County Commissioner Mike Gaughan, who was on staff for each.
But some public officials, at the advice of political consultants, have eschewed official public accounts in preparation for the possibility that such information could be requested by the media, Policinski said.
“It’s a practice that runs counter to the spirit of open records laws,” he said.
That’s not to say that opening all communications from state officials serves a public interest, and Policinski said some personal communication — with family members, for instance — falls under a “zone of privacy” and should be exempt from public view.