TOPEKA — Kansas Secretary of State Scott Schwab violated the state’s Open Archives Act when he ordered a software vendor to disable the ability to produce a public record, the court ruled Friday. call from Kansas.
The ruling is the latest victory for voting rights advocate Davis Hammet in his three-year legal battle with Schwab over access to provisional voting data under the Kansas Open Records Act.
“By disabling the reporting capability, the secretary has denied reasonable public access to this public record and the information contained therein,” Judge Stephen Hill wrote in the appeals court ruling. “This 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 rejected. Some of the issues can be fixed. A voter may have failed 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 strives to educate and engage young adults and underrepresented communities in Kansas elections, filed a series of requests for interim voting reports under the Kansas Open Records Act. The goal is to help voters get their ballots counted and to research the issue to better advise officials on policies that impact voters.
In an earlier lawsuit, Shawnee County District Judge Teresa Watson ordered Schwab to turn over the information to Hammet. Schwab responded by criticizing the court and asking ES&S, the software provider for the state 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 does not require public agencies to create software functionality.
Hill rejected Watson’s “forced analysis”, which “effectively seals computer records”.
“This decision would allow all computer records of public information to become inaccessible through the simple manipulation of what the computer system is instructed to do,” Hill wrote.
KORA states that it is the policy of the state that public records be open to inspection by any person and that the policy “shall be liberally interpreted and applied.” That means agencies shouldn’t hide records, Hill wrote.
The law specifies 55 types of documents that are not open, but both parties to the lawsuit have agreed that none of those exemptions apply in this case.
“This is a clear victory for government transparency and access to public records,” said Josh Pierson, the ACLU of Kansas’ lead attorney who argued the appeal in court. “It confirms what we have always said – that Secretary Scott Schwab violated KORA and that government agencies should strive to make records more transparent, rather than less.”
Hammet attempted to obtain interim voting records by submitting an open records request to each of the state’s county clerks, who administer the elections. A clerk said in an email that Schwab’s office asked clerks at a statewide conference not to respond to Hammet’s request. The secretary denied having given this instruction.
Schwab argued that he was being held hostage by KORA and that his motivation for disabling 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 can no longer produce the provisional voting record is “dishonest,” Hill wrote.
“What can be turned off can be turned on,” Hill wrote. “When the Secretary directed ES&S to disable the computer function that generates the Detailed Draft Ballot Report – a report properly declared to be a public record – he denied reasonable public access to that public record. This denial of public inspection of a public record violates Kansas open records law.
The appeals court ordered the district court to order Schwab to restore the reporting feature.