A state appeals court on Friday found that Secretary of State Scott Schwab violated the Kansas open records law when he decided to eliminate the ability of an election database to produce a report showing who cast provisional ballots.
The three-judge panel reversed District Judge Teresa Watson’s decision to reject a lawsuit brought by civic activist Davis Hammet, who argued that Schwab violated the law when he removed a computer function for producing a statewide provisional ballot report.
The appeals court sent the case back to Watson with directions to enter judgment for Hammet.
It also directed the court to order Schwab to restore the provisional ballot detail report feature so the public could have access to that public record.
The secretary of state’s office said it was reviewing the decision.
“This is a clear victory for government transparency, public records access,” said Josh Pierson, senior staff attorney for the American Liberties Union of Kansas.
“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.”
The court found that when Schwab ordered the computer feature that generates the provisional ballot report turned off, he “denied reasonable public access to that public record.”
“It is not as if Hammet is forcing the secretary to create a new software feature to generate and have access to this report,” the panel ruled.
“This is a case in which the secretary deliberately had the software changed so that Hammet, or anyone else in the public, had no access to the report.”
Hammet had sought the information about provisional ballots to assist voters in solving issues that led to their ballots being set aside, whether it was because they lacked identification or voted at the wrong polling location.
Hammet was trying to help ensure that those voters could cast ballots in the next election and help increase voter turnout.
The secretary of state argues that he was being forced to produce a report that is not required by law or is even wanted or needed by the agency.
The case raises questions about how far Kansas governments have to go to provide data sought under the state open records law.
In 2020, Hammet prevailed in a separate lawsuit against the secretary of state seeking the provisional ballot report from the 2018 general election.
Schwab had denied the first records request, saying federal law created an exemption to the state’s open records law and because there was a constitutional right to informational privacy about whether a voter cast a provisional ballot.
The secretary of state gave Hammet the records he sought from 2018, but later removed the function for producing the report from its statewide voter database.
When Hammet sought the same report for the 2020 primary election, he was told the information was unavailable and that secretary of state’s office would have to retrieve the data – at a cost of $522 – from the software contractor.
He then filed a lawsuit against the secretary of state that was the focus of the decision rendered on Friday morning.
The court noted that the secretary of state provided reports previously to Hammet with apparent ease and at no additional expense.
The only difference between those earlier requests and this request was that Schwab made the report inaccessible by turning off the function, the court said.
“We see no evidence that this (open records) request placed an onerous burden on the secretary’s office,” the court ruled.
“Any burden here is self-imposed and does not arise from the (open records) request.”
The court found that Schwab never offered a reason for shutting off the function that produced the report after losing in court on the first lawsuit.
“Instead, he argues in his brief that this is a discretionary management decision that balances access of the public with the burdens” of an open records request.
“In his view, (open records) requests should not hold the secretary hostage,” the court ruled.
“He contends that his motivation to delete the feature is irrelevant because the report software commands are ‘a functionality’ and the function is not a public record.
“None of these arguments are persuasive.”
The court agreed that Schwab had discretion to run the office, but that did not mean violating the open records law.
“Sound discretion implies that one who exercises that discretion has a good reason for choosing one action over another, or for refraining from one action or another,” the court said.
“We have never been given the secretary’s reason for turning off the report feature. How can we say, then, that he has exercised sound discretion?
“We do know that official discretion does not grant the secretary the right to violate” the open records law.
“Deliberate actions have consequences. Public officials must also respect the public policy formulated by the Legislature.
