TOPEKA – Kansas Secretary of State Scott Schwab violated the state’s open records law when he ordered a software vendor to disable the ability to create a public record, a Kansas court ruled. of Appeals ruled on Friday.
The decision is the latest victory for Davis Hammet, a voting rights advocate, in his three-year legal battle with Schwab over access to temporary ballot data under Kansas Open Records. Act.
“By shutting down the ability to report, the secretary is denying the public reasonable access to that public record and the information it contains,” Justice Stephen Hill wrote in the appeals court decision. “That action — choosing to conceal rather than disclose public records — violates KORA.”
Every election cycle, Kansans cast tens of thousands of provisional ballots, most of which are thrown away. Some of the issues can be corrected. A voter may have neglected to update their registration after moving, or an election official may question the validity of a signature on a mail-in ballot.
Hammet, the president of Loud Light, which works to educate and engage young adults and underrepresented communities in elections in Kansas, filed a series of requests for provisional ballot reports. under the Kansas Open Records Act. The goal is to help voters count their ballots, and to research the issue to better advise public officials about policies that affect voters.
In the first case, Shawnee County District Judge Teresa Watson ordered Schwab to turn over the information to Hammet. Schwab responded by suing the court and asking ES&S, the software vendor for the state’s election system, to disable the reporting feature.
Hammet, represented by the American Civil Liberties Union of Kansas, responded by filing a second lawsuit. This time, Watson ruled that KORA does not require public agencies to develop software functionality.
Hill rejected Watson’s “strained analysis,” which “effectively seals computer records.”
“That ruling would allow all computer records of public information to be inaccessible by simply manipulating what the computer system is asked to do,” Hill wrote.
KORA stated that the state’s policy is that public records are open to inspection by any person and that the policy “will be available and available.” That means agencies don’t have to keep records, Hill wrote.
The law specifies 55 types of records that are not open, but both sides of the lawsuit agree that none of the exemptions apply in this case.
“This is a clear victory for government transparency and access to public records,” said Josh Pierson, the senior staff attorney for the ACLU of Kansas who argued the appeal before the court. “This confirms what we’ve said before — that Secretary Scott Schwab violated KORA, and that government agencies should work to make records more transparent, rather than less.”
Hammet attempted to obtain provisional ballot reports by submitting an open records request to each of the state’s county clerks, who oversee elections. A clerk said in an email that Schwab’s office instructed clerks at a statewide conference not to respond to Hammet’s request. The secretary denied giving that instruction.
Schwab argued that he was being held hostage by KORA, and that his motivation to restrict access to public records was irrelevant.
Hill said the court could not “see how this request by KORA held the secretary hostage when all it took was for one of his employees to push a button on the computer.”
The secretary’s claim that he could no longer produce the provisional ballot record was “disingenuous,” Hill wrote.
“What can be turned off can be turned on,” Hill wrote. “When the secretary ordered ES&S to turn off the computer feature that generated the temporary ballot detail report – a report that was properly declared a public record – he denied reasonable public access to that public record. That denial of public inspection of a public record violates the Kansas Open Records Act.
The appeals court ordered the district court to order Schwab to return the reporting portion.