- Associated Press - Sunday, February 15, 2015

TOPEKA, Kan. (AP) - A heavily redacted 11-page response from Kansas State University to a newspaper’s open records request illustrates shortcomings with the state’s open records law, but a leading First Amendment expert said it can be difficult to challenge such redactions.

The Topeka Capital-Journal requested all emails between Kent Glasscock, the president of the school’s Institute for Commercialization, and Shawn Sullivan, the state’s budget director, from November through late January. The newspaper (https://bit.ly/1uWsNYO ) was seeking more information about Gov. Sam Brownback’s budget proposal was developed.

The university responded last week by providing nearly blacked-out pages.

Mike Merriam, a Topeka attorney who has spent decades taking on First Amendment cases, said he has seen other instances involving heavy redactions, but he questioned the university’s justification for such extensive redaction on fulfilling the Capital-Journal’s request.

The Wichita Eagle initially reported that lobbyists David Kensinger and Mark Dugan, who both have long-running ties to the administration, were given a preview of Brownback’s budget in a late December email. The Capital-Journal filed its request to see whether the lobbyists’ inclusion in the process extended beyond that email.

Emails that Kansas State provided to the newspaper show that Kensinger and Dugan were included in discussions about the budget as early as Dec. 6, but the content of those emails was almost entirely redacted.

The university cited an exemption in the Kansas Open Records Act that allows notes, preliminary drafts, research data in the analysis process, memoranda and other records “opinions are expressed or policies or actions are proposed” to be protected from disclosure.

Kansas State could have provided those documents without the redactions, but it wasn’t required to under the law.

Merriam said the disclosure exemption was meant to apply to internal deliberative processes by a public agency, and that it’s not an internal process when it involves people who aren’t members of that agency. Challenging such redactions is difficult because it can be hard to argue that they shouldn’t have been redacted without having seen the un-redacted version, he said.

The emails also show state officials such as Kansas Board of Regents Chairman Kenny Wilk and Lt. Gov. Jeff Colyer receiving budget-related emails on their personal email accounts. Under current law, communications from private accounts are thought to be exempt from disclosure.

Legislation has been introduced to change that.

Senate Minority Leader Anthony Hensley, a Topeka Democrat, introduced a bill last week that would include information from personal electronic devices like cellphones under the definition of public records when the information relates to operations funded with public money.

In the House, an effort by Rep. Jim Ward, D-Wichita, to amend legislation to create a similar requirement failed in a 30-86 vote.


Information from: The Topeka (Kan.) Capital-Journal, https://www.cjonline.com

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