Yet another attack on democracy
The threat to free and open government posed by an illegal raid on our newsroom Aug. 11 pales in comparison to the threat posed Tuesday by a lawyer hired to try to extract the city from the legal mess the raid created.
By contending that text messages sent between elected officials are not subject to disclosure under the Kansas Open Records Act, lawyer Jennifer Hill essentially told every official in Kansas to stop sending emails and memos and start texting each other so back-room deals more easily can escape public scrutiny.
Her stance on texts is diametrically opposed to what the city has been saying for years. It has spent thousands of dollars in taxpayer money buying phones, tablets, and other electronic devices for elected and appointed officials precisely because it thought messages sent among officials were subject to disclosure, whether they were stored on public or private devices. It didn’t want to have to mess around with searching through private email and text archives when asked to disclose records.
Hill’s legal justification appears to come from a tiny passage in state law that exempts from disclosure “records that are made, maintained or kept by an individual who is a member of the legislature or of the governing body of any political or taxing subdivision of the state.”
That’s supposed to mean private notes or research an official makes for his or her own purposes, not messages or documents he or she shares with others.
If, as Hill suggests, it includes anything an individual makes or keeps, that would mean any official could start using Gmail, Yahoo! or some other private email system and contend that everything sent or received, even if to or from another official, is secret.
We’ve seen that attempted by a former governor, a former U.S. secretary of state, and numerous other officials, but in nearly every case the lame excuse was rejected by courts.
Hill’s definition is so expansive that officials could exchange notes, contracts, or other written documents. Because they created or kept them in their own files, outside an official archive, they would be off limits for anyone to see.
This would do nothing less than gut the Kansas Open Records Act. Governments and officials would begin keeping everything in personal files, electronic or otherwise, and no one other than them would ever be able to see them. This is not even a half-step removed from the type of secrecy practiced in totalitarian regimes.
Hill’s assertion, while neglecting to note that the administrator would not be covered by the provision she cites, raises the specter that there must be something the city is hiding in texts sent among Mayor David Mayfield, Police Chief Gideon Cody, and Administrator Brogan Jones in the days before and immediately after Cody’s raid on the Record newsroom and the homes of Vice Mayor Ruth Herbel and the Record’s owners.
It also raises the ante on the losing hand she is playing as she tries to defend indefensible acts Cody and Company committed, particularly when it has been widely reported that Cody shifted from using official accounts to personal accounts specifically so his messages to others would be harder to scrutinize.
Legal bills the city will end up having to pay get higher and higher with each roadblock Hill attempts to place in the path of searches for the truth.
If, unimaginably, Hill’s interpretation — completely contrary to how similar laws are interpreted in other states — were to be upheld, it then would become incumbent on our state representatives and senator to close the loophole she is trying to exploit.
At a time when all candidates in the upcoming city election are speaking about the need for greater openness, honesty, and civility in government, Hill’s actions Tuesday have left us with a city that is neither stronger nor more together but rather falling back on past patterns of hiding truth from the public.
She unfortunately has widened rather than narrowed a chasm between government and the public that may be very difficult to heal unless her actions promptly are repudiated by the city council.
— ERIC MEYER