Is county e-mail a public record?

November 19, 2001

When Sedgwick County commissioners unanimously rejected domestic partner benefits for county employees, they said they did so because of the overwhelming volume of calls and e-mails they had received opposing the benefits.

Maureen Horowitz had a simple question: How many e-mails were for and against?

So she requested them under the Kansas Open Records Act.

Request denied.

And Horowitz said she was shocked.

"Oddly enough, it was suggested to us by someone in the county communications office (to make the request)," Horowitz said. "If they're making policy allegedly based on this input from the public, then how can those e-mails be private?"

That's a question already being considered by Attorney General Carla Stovall.

In a case involving the city of Hays and a local newspaper, the attorney general's office is drafting its first legal opinion on whether e-mails are public records, Assistant Attorney General Theresa Nuckolls said.

One section of the open records law states: "Public records shall not include records... which 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 is the section that Sedgwick County cited in rejecting Horowitz's request.

But another section seems to indicate that records related to proposed legislation should be open when they are "publicly cited or identified in an open meeting or in an agenda of an open meeting."

In the absence of any court precedent, clarifying the law falls to the attorney general.

Although the opinion won't have the force of law, it carries influence until and unless someone challenges it, said John Bird, the city attorney in Hays who requested the opinion.

"A public official who relies on it can't be accused of misconduct," he said. Conversely, officials who go against an attorney general's opinion don't have that protection and face tougher sanctions if they lose, he added.

When it comes to Horowitz's case, the point is probably moot.

Four of the five Sedgwick County commissioners said they had deleted the e-mails she requested. Commissioner Carolyn McGinn did not return a phone call seeking comment.

Commissioner Tom Winters said the information would not be revealing, even if it were available.

He said the decision was "more than just taking a head count of how many people were in favor and how many were against.... I do not make a decision based on that."

But it was clear that phone and e-mail messages were persuasive when the commission overturned County Manager William Buchanan's decision to allow county workers to extend their health coverage to live-in partners in heterosexual or homosexual relationships.

Individually, commissioners had given Buchanan the go-ahead, saying it was his decision. Comments didn't start until weeks later when the benefit change became public knowledge.

McGinn and Commissioner Ben Sciortino said they had opposed the benefits from the start. Winters and Commissioner Tim Norton said they changed their minds after hearing from their constituents. Betsy Gwin voted against the benefits without commenting.

This week, commissioners said that they would follow whatever law comes down on disclosure of e-mails in the future.

But they did have reservations about releasing the messages.

Norton said he sees the e-mails as a private communication between constituents and their representatives and that government would be "hamstrung" if they have to be open.

"If you make e-mails public, are you going to do the same thing for phone calls?" he said.

Sciortino said, "If all of a sudden your e-mail is open to anybody who wants to request it, you could make the argument that it is kind of an invasion of privacy."

But he said he welcomes the attorney general's guidance. "If it is (an open record), I don't have any problem complying with that."

Horowitz said she sees it as an issue of trust.

No one disputes that the commission got a lot of messages from opponents of domestic partner benefits. Several churches in the area organized their members to call and write.

But supporters say they know they sent more than the handful of messages that commissioners acknowledged receiving.

Since the vote, they say they've collected more than 1,000 signatures asking the commission to hold a full public hearing on the issue, which was voted on without an open debate.

Reach Dion Lefler at 268-6527.