Secretary of State Scott Schwab directed a software provider to disable the ability to produce public records after losing a lawsuit in which he was ordered to turn the records over. (Jan. 13, 2021, photo by Sherman Smith/Kansas Reflector)
TOPEKA — Kansas Secretary of State Scott Schwab violated state open records law when he ordered a software vendor to disable the ability to produce a public record, the Kansas Court of Appeals ruled on Friday.
The ruling is the latest victory for Davis Hammet, a voting rights advocate, in his three-year legal fight with Schwab over access to provisional ballot data under the Kansas Open Records Act.
“By turning off the report capability, the secretary denied reasonable public access to that public record and the information within it,” Justice Stephen Hill wrote in the appeals court decision. “That action — choosing to conceal rather than reveal public records — violates KORA.”
Each election cycle, Kansans cast tens of thousands of provisional ballots, many of which are discarded. 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 on elections in Kansas, has filed a series of requests for provisional ballot reports under the Kansas Open Records Act. The goal is to help voters have their ballots can be counted, and to research the issue to better advise public officials about policies that impact voters.
In an earlier lawsuit, Shawnee County District Judge Teresa Watson ordered Schwab to turn the information over to Hammet. Schwab responded by criticizing the court and asking ES&S, the software vendor for the state’s election system, to disable the reporting feature.
Hammet, who is represented by the American Civil Liberties Union of Kansas, responded by filing a second lawsuit. This time, Watson ruled that KORA doesn’t require public agencies to create a software functionality.
Hill rejected Watson’s “strained analysis,” which “effectively seals computer records.”
“That ruling would allow all computer records of public information to become inaccessible through the simple manipulation of what the computer system is asked to do,” Hill wrote.
KORA declares the state policy is that public records be open for inspection by any person and that the policy “shall be liberally construed and applied.” That means agencies should not conceal records, Hill wrote.
The law specifies 55 types of records that are not open, but both sides of the lawsuit agreed none of those exemptions apply in this case.
“This is a clear victory for government transparency and public records access,” said Josh Pierson, the senior staff attorney for the ACLU of Kansas who argued the appeal before the court. “It affirms what we’ve said all along — that Secretary Scott Schwab violated KORA, and that government agencies should be working to make records more transparent, rather than less.”
Hammet attempted to get provisional ballot reports by submitting an open records request to each of the state’s county clerks, who administer elections. One clerk said in an email that Schwab’s office had 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 for disabling access to public records is irrelevant.
Hill said the court can’t “see how this KORA request held the secretary hostage when all it required was for one of his employees to push a button on the computer.”
The secretary’s claim that he no longer can produce the provisional ballot record is “disingenuous,” Hill wrote.
“What can be turned off can be turned on,” Hill wrote. “When the secretary directed ES&S to turn off the computer feature that generates the provisional ballot detail report — a report correctly declared to be 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 directed the district court to order Schwab to restore the reporting feature.
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