TOPEKA (TNS) — Government transparency has been at the forefront of Kansas politics during the first three months of 2015.
Gov. Sam Brownback’s office faces a lawsuit from several media outlets regarding rejected open records requests, and several controversial bills in the Kansas Legislature have been introduced anonymously, without a clear author stepping forward. Legislative rules allow that.
E-mails sent by top administration officials on private accounts have sparked debate, as have proposals about body cameras and audio streaming of legislative committee meetings.
Such debates can decide whether the public has the information it needs to know how government is performing, to determine whether tax dollars are being spent responsibly and to hold policymakers accountable for their actions and decisions.
Status of legislation affecting public access to information
Lawmakers differ dramatically when asked to assess the level of transparency in state government and whether it could be improved.
Rep. Jim Ward, D-Wichita, called a lack of transparency a major problem in Topeka.
But House Speaker Ray Merrick’s office said in an e-mail that the Legislature already is transparent.
“There is already a large degree of transparency in the process, it just requires some effort,” the e-mail stated. “Anyone is welcome in the Capitol and can meet with members, attend hearings, and watch the activities in the House and Senate Chambers.”
Ward said the speaker has been a roadblock to efforts to increase transparency.
“This speaker has made no effort to use that moral authority of his office to say we are going to be open and above board,” Ward said. “In fact, there are several examples where you would question that commitment.”
Ward and Rep. Stephanie Clayton, R-Overland Park, have offered legislation this session that has stalled in the House – though similar bills remain alive in the Senate. Other efforts to increase transparency have been able to gain more traction.
Here is an overview of how legislation that would either increase or restrict the public’s access to information has fared so far this legislation session.
The bills: HB 2300 and SB 201
What they would do: End a loophole in the Kansas Open Records Act that allows public officials to communicate about state business on private e-mail.
The legislation, sponsored by Ward, was drafted after The Eagle reported the state’s budget director had used a private e-mail address to share details about Gov. Sam Brownback’s proposed budget with two lobbyists in December.
Where they stand: The bill has been tabled by the House speaker’s office, despite assurances by a committee chair that it would receive a hearing.
In an e-mail, the speaker’s office called Ward’s bill the “wrong solution for the issue the media had with the Governor’s office,” contending that the e-mails in question would have been exempt from KORA even if they were sent on a state address because they were policy drafts. Kansas State University cited this exemption when it heavily redacted e-mails between Brownback’s budget director and a faculty member who consulted on the budget.
Ward had a second bill to close that exemption; it also was tabled.
The Senate bill to close the private e-mail loophole remains alive but has gained little traction.
What people say: “I feel like business is business, and when you’re in public office your communications should be known to the public. On the other hand, our private lives need to be protected and nobody would run for office if they thought the press was going through our private e-mails,” said Senate President Susan Wagle, R-Wichita.
Bill: SB 197
What it would do: Make the Supreme Court nominating process more transparent by making the nominating commission subject to the state’s open records and open meetings acts.
It would also, as amended, require the governor to disclose the applicants when he makes an appointment to the Kansas Court of Appeals.
Where it stands: The bill passed unanimously in the Senate and is now before the House.
Senate Minority Leader Anthony Hensley, D-Topeka, offered the amendment on the Senate floor to also require the governor to disclose the names of applicants for positions on the Court of Appeals. Senate Vice President Jeff King, R-Independence, the carrier of the bill, supported it. King described it as a “kumbaya moment.”
Gov. Sam Brownback’s office recently rejected requests from the Associated Press and The Eagle for this information, citing a personnel exemption, for his recent appointment to the court. His office did the same thing in 2013. During confirmation hearings, King raised questions about whether Brownback’s appointee, Kathryn Gardner, was the most qualified candidate for the position.
Recording and streaming committee hearings
The bills: HB 2148 and SB 86
What they would do: Set up a live audio stream for four committee rooms that house some of the House and Senate’s most important committees, including the budget, tax and judiciary committees. It would keep an audio archive of committee proceedings.
The bill, known as the Transparency Act, would provide “the security tape of legislation,” Clayton said. “You go back and this is indisputable. It can’t be taken out of context and so it’s not just good for the people, it’s good for us, too.”
Where they stand: The Senate unanimously passed a bill that included video streaming last year, but it did not get a vote in the House. House leaders blamed the session’s time constraints.
Both Senate and House bills received hearings in this session. The Senate version remains alive in committee. The House version was tabled by House leadership even though it was advanced by a committee and had 25 co-sponsors – a fifth of the House – including members of both parties.
What people say: Speaker Ray Merrick’s office said in an e-mail that there was no need to keep the House bill alive “when the bill the Senate had will achieve the same results.” The e-mail also said Merrick is a proponent of more audio streaming, but noted concerns about the cost. The bill’s projected cost is $77,000.
“If they really wanted to run that bill last year they would have done it. They have absolute power in the House. If you really want something then prove it to me that you want it. I have as of yet to see the proof,” Clayton said.
House rules, joint rules
The resolutions: HR 6004 and HCR 5002
What they do: Govern how the Legislature conducts business.
Where they stand: The House engaged in an epic debate about parliamentary rules early in the session. Proposals to require that all votes be recorded – some measures can currently pass by anonymous voice vote – and that a budget be available for two days before it can be voted upon were rejected.
Rep. John Rubin, R-Shawnee, was able to build a bipartisan coalition to put an end to voting after midnight, a common occurrence toward the end of sessions, and to restrict the bundling of bills, practices that Rubin says hurt transparency.
Bundling is the informal name for combining unrelated bills – usually measures that would not pass on their own merit with a measure that needs to pass.
Rubin proposed limiting bundling to two bills, while the Senate wanted no limit. A compromise limits bills to four subjects, but tax bills are exempt from this rule and many lawmakers expect a massive tax bill to come to the floor at the end of the session.
Bill: HB 2237
What it would do: Permit cities and counties to publish official notices on their websites instead of paying to print the information in local newspapers.
Where it stands: The bill has been bounced between several committees and now sits before the House Commerce Committee. It remains alive, having been blessed by the House speaker. It is scheduled for a hearing Monday afternoon.
Rep. J.R. Claeys, R-Salina, has said the bill would save municipalities money. He contends it will enable people to find out information about public business without subscribing to a newspaper. Critics say the measure would reduce transparency and make it more difficult for people without access to the Internet to find out information about their local government.
Some people have also seen this as an attack on newspapers, which will lose significant revenue if the measure passes. Claeys was the subject of an investigation by his hometown paper the Salina Journal last year regarding allegations that he lives outside his district. Claeys says the bill has no relation to the Journal’s reporting.
The bills: HB 2137 and HB 2359, SB 18
What they would do: Footage captured by law enforcement body and vehicle cameras would not have to be released to the public. Recordings would be exempt from the Kansas Open Records Act until at least July 1, 2020.
People who were recorded and their lawyers – and their parents or legal guardians if they are minors – would be allowed to listen to or view the footage. Law enforcement would have the ability to charge “a reasonable fee for this service.”
Initially, HB 2137 and SB 18 also made wearing body cameras mandatory for on-duty law enforcement officers primarily assigned to patrol. It set guidelines for retention of the video.
But that mandate was removed from the Senate bill in committee, and HB 2137 died in committee. The Senate bill and HB 2359 both focus solely on the KORA exemption.
Supporters of the original bill, drafted in response to public demands for increased transparency from law enforcement, have said it sought to promote police accountability and strengthen relations between authorities and the public. Opponents said the costs of implementing the cameras and handling footage would burden local governments.
Where they stand: Senators approved the modified SB 18 unanimously on Feb. 26 and sent it to the House. It is scheduled for a hearing in the Judiciary Committee on Thursday afternoon.
The House bill is stalled in committee.
What people say: There are legitimate reasons for most footage to be exempted from the open records act, said Micah Kubic, ACLU of Kansas executive director. But the current bill “is far too broad and goes too far in the other direction, and would have a harmful impact on accountability and public access to information,” he said.
The bill should be amended to “make sure that there is sort of a newsworthy exception” that gives access to footage that is relevant to complaints against law enforcement, or captures use of force or arrests, he said.
Asked by e-mail for his thoughts on the current Senate bill, Sedgwick County District Attorney Marc Bennett wrote that agencies that use body cameras extensively have reported higher than expected costs associated with open records requests. “Someone has to process and retrieve each such request … though as the practice continues one would think software development could help.”
He said he has “heard concerns expressed about privacy of citizens during interaction with law enforcements.”
But, he added, “I trust that the balance that is ultimately struck takes pains to adequately address the goal of all the effort and cost that is being put into these recordings: to maintain transparency and encourage confidence in investigations.”
How to contact elected officials
Go to Kansas.com/politics for information on how to find and contact the governor, legislative leaders and your lawmakers.
How to get state records
• For a list of records that each state agency in Kansas is required to keep and the length of time the records must be retained, go to www.kshs.org and search “retention schedules.”
• Send your request to a specific person, often the public information officer for a state agency. For the name and address of the PIO, search for the term “Kansas public information officer” and the name of the agency.
• If a large number of documents are being requested, ask to inspect the records in person and then pay for copies that you want.
• Information on state spending, state employee salaries, economic development incentives and other databases are available at www.kanview.ks.gov.
• The state offers a Kansas Open Records Act request form at www.admin.ks.gov.
How to get federal records
The Freedom of Information Act applies to all federal agencies.
• Send your written request to a specific person, usually the FOIA officer. For a list of federal agencies, their addresses and the names of the FOIA officers, go to www.foia.gov/report-makerequest.html.
• Check the agencies’ websites first to see if you can find what you’re looking for. Agencies are required to automatically release certain information.
• The Reporters Committee for Freedom of the Press offers tips for FOIA under its open government guide. Go to www.rcfp.org.