March 15-21, 2015, marks the 10th anniversary of the nationally commemorated Sunshine Week in which open government proponents throughout our nation point with pride at transparency breakthroughs, but are equally alarmed about setbacks to the people’s right to know what their government is up to.
A review by the Kansas Sunshine Coalition for Open Government shows the Kansas experience over the past 10 years is no different. While sunshine victories can be proclaimed in some areas of our state government—the legislative enactment of a media shield law, for example, there have been serious setbacks, including the expansion of exceptions to the state’s Open Records Act from 10 or so initially to now 57 and counting. Meanwhile, the cost of gaining access to these “open government” records has mushroomed to the point that pressing access in many instances simply isn’t worth the effort to the citizenry.
Kansas media representatives who track open government legislation could describe their job as “whack-a-mole” because, as Gilda Radner was wont to say, “There’s always somethin’”! This year is no different. Currently, organizations representing cities, counties, and other governmental entities are pushing to end the practice of publicizing their legally required notices, including budgets, in print, opting instead to restrict them to websites, particularly if the website is operated by the very entity charged with making their work available to the general public.
On another front, the current gubernatorial administration has taken the position that government business may be discussed—transacted?—in secrecy via email if it transpired using a private internet service provider. Object lesson: accomplish the deed by gmail, making sure only the agency “good news” is transmitted through government email accounts. Case in point: an email detailing what should be the most public of any public document, the state budget director’s proposal to close budget shortfalls totaling more than $710 million. It was secretly emailed to two lobbyist confidantes prior to it being unveiled even to the Legislature, let alone Kansans, many of whom are struggling with their own budget woes brought about by a burgeoning tax load.
Adding salt to the wound is news that the Wichita Eagle, which broke the budget proposal story, was advised that a request to the governor’s office for access to emails between that office and one of the lobbyists would cost $1,235. So, if one as a government official needs to accomplish a deed in secret, do so on a home computer using a private email account, but if that isn’t possible make the cost of accessing the public record prohibitively high for most citizens.
That same secret mindset has now been extended to state judiciary appointments, which had been transparent by Supreme Court rule since 1981. Now, no one knows who has applied for a judge vacancy until the governor makes his appointment. Confirmation of that appointee now rests with the same entity—the Legislature—which voted to make the process opaque in the first place.
Secrecy in government is not the exclusive domain of the executive and legislative branches of government, however, as an ongoing case study at the University of Kansas demonstrates. There, a student group seeks to determine the extent of the influence the Charles and David Koch foundations may have in its donations totaling at least $1.4 million to the KU School of Business. The students’ records request for any restrictions on Koch funding was approved by the university—but with a price tag of $1,800. (Read: if a public document must be made available, make the cost of obtaining it prohibitive.)
So, what does secrecy in government mean to us as citizens? Last year, legislators needed only to hear from a Leawood couple to learn what a travesty secret records could unleash. That case involved an innocent family whose personal nightmare began when a totally unfounded drug raid was promulgated on their suburban Johnson County home. Despite the horrors of the morning raid, to the couple’s dismay, they found that the information on which the bogus raid was based was secret per a 1979 law. Though the record detailing probable cause, or in this case, lack of probable cause for the search, could have been opened, it was kept secret.
Given the baseless grounds for the drug raid in the first place, it is unsurprising that someone wanted to keep the family in the dark to protect an exposed backside—or several. Thanks to efforts by the couple and other proponents of open government, the affidavit for the search warrant eventually was opened to the couple, and legislation opening future affidavits in search and arrests has been enacted to bring a little additional sunshine into Kansas government.
Kansans fear and mistrust the unknown. We must, in fact and in deed, let the sunshine in!
Ron Keefover retired last year as public information officer for the Kansas Court System. He is president of the Kansas Sunshine Coalition for Open Government