Kansas judge to decide whether secretary of state can hide public records by altering software

By: - July 14, 2021 2:58 pm

Kansas Secretary of State Scott Schwab answers questions from news reporters following the 2020 Electoral College vote in the House chamber at the Statehouse. (Sherman Smith/Kansas Reflector)

TOPEKA — An attorney for the American Civil Liberties Union of Kansas says the state’s open records law might as well not exist if Secretary of State Scott Schwab is allowed to keep public information hidden by reconfiguring software.

Attorney Josh Pierson argued Wednesday in Shawnee County District Court for the release of provisional ballot data requested by Davis Hammet, a voter rights advocate who hoped to educate voters about why their ballots weren’t being counted.

Hammet won a lawsuit last year over whether details about provisional ballots are a public record, and District Judge Teresa Watson ordered Schwab to turn the information over. The secretary of state, whose agency oversees elections and manages a statewide voter database, instead ordered software engineers to remove the database function that allows the agency to produce the records.

The secretary then denied Hammet’s request on the grounds that the records no longer exist.

Schwab’s office told Hammet he could still get access to the data, but only if he paid $522 for the database vendor, Election Systems & Software, to retrieve it. Hammet sued again, with support from the ACLU.

“This is gamesmanship,” Pierson said. “This was an attempt by the secretary to not have to produce these records that he litigated to not have to produce. He lost. He took matters into his own hands.”

The proposed $522 fee is an unnecessary “roadblock” intended to discourage requests for public records, Person said.

Pierson and Garrett Roe, an attorney for Schwab’s agency, are asking Watson to issue summary judgment in the case. Roe argued that the Kansas Open Records Act only requires agencies to turn over existing records, and says nothing of software management.

“There’s nothing in KORA that requires an agency to continue to maintain a database function it does not want to use,” Roe said.

The state statute governing open records law wasn’t designed for the modern age, Pierson argued, where documents are kept electronically. KORA passed in 1984, and replaced a law that had been on the books since 1957. However, KORA declares the policy of the state is that public records should be open for inspection, and the law should be “liberally construed to promote such policy.”

This is gamesmanship. This was an attempt by the secretary to not have to produce these records that he litigated to not have to produce. He lost. He took matters into his own hands.

– Attorney Josh Pierson

Pierson said the judge could let the principals of the law guide her decision, but Watson pushed back on the idea of creating a new legal standard where no other case law exists.

“We’re going a step beyond ‘KORA requires the agency to provide what they have’ to telling the government agency, ‘You should be able to provide this,’ ” Watson said.

Pierson said public agencies shouldn’t be allowed to wash their hands of their responsibility to turn over public information because they are unhappy with a records request.

“It cannot be how KORA functions — otherwise, we might as well not have KORA itself,” Pierson said.

Hammet is the president of Loud Light, which encourages civic participation.

Each election cycle, Kansans cast tens of thousands of provisional ballots, which may or may not be counted. Voters won’t appear to be registered in a new county if they fail to update their registration after moving, or an election official may question the validity of a signature on a mail-in ballot. Those issues can be corrected.

Loud Light also is involved in separate litigation over recent changes to election law.

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Sherman Smith
Sherman Smith

Sherman Smith is the editor in chief of Kansas Reflector. He writes about things that powerful people don't want you to know. A two-time Kansas Press Association journalist of the year, his award-winning reporting includes stories about education, technology, foster care, voting, COVID-19, sex abuse, and access to reproductive health care. Before founding Kansas Reflector in 2020, he spent 16 years at the Topeka Capital-Journal. He graduated from Emporia State University in 2004, back when the school still valued English and journalism. He was raised in the country at the end of a dead end road in Lyon County.