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Attorney general looks to strengthen enforcement authority on records law

Attorney general looks to strengthen enforcement authority on records law

January 23rd, 2018 by Phillip Sitter in Local News
Missouri Attorney General Joshua Hawley

Missouri Attorney General Josh Hawley on Monday announced three proposals meant to strengthen and give "real teeth" to the state's Sunshine Law that governs open meetings and records requests.

Hawley met with Jean Maneke, counsel for the Missouri Press Association, then made the announcement in his office for a small group of media members, but the Sunshine Law is about much more than what reporters have access to.

"We're here because of citizens around the state who have questions they want to know about their local governments," Maneke said.

"For many citizens, they have no other way to get that information. Their local prosecutors who are empowered to act have a conflict and can't act. Most of them can't afford to hire private attorneys, and so they come to the attorney general's office to ask for help with these questions," she added.

Without the enactment of Hawley's proposals, however, even his office has only so much power to prosecute violations of records law.

"Currently, there is no subpoena enforcement authority under the Sunshine Law. Enforcers can ask, ask vigorously, but there is no way to compel any subject of a review to actually cooperate with this office," Hawley said.

"This office has subpoena power in other contexts. It is a standard law enforcement tool. I think we need it to enforce the Sunshine Law," he added.

"I'm confident that we're going to be able to get the information that we need, and if we can't, then we'll make that known. If we do not receive cooperation for these inquiries, and we're not able to get the information we think we need to conduct a review, we will make that public," he said regarding an open inquiry of his office centered around Gov. Eric Greitens after alleged use of private messaging app Confide, which deletes communications.

Hawley said his office is "moving forward (with the inquiry) as quickly as circumstances allow," but did not want to provide any more detail at the risk of prejudicing the outcome.

Another of Hawley's proposals is to create a permanent transparency division within the attorney general's office that will "have the authority to enforce the Sunshine Law and that will have automatic waivers (from the Legislature) of any potential ethical conflict from other executive agencies."

He said the new division would use existing attorneys who would be "walled off from the rest of the attorney general's office," that would "never defend an executive agency."

His third proposal is to create remedies for Chapter 109 violations and give his office power to enforce those remedies. Chapter 109 of the Missouri Revised Statutes governs public and business records, including what government agencies and bodies are required to retain as record, some of which may later be obtained through Sunshine requests.

"Currently, the records retention law has no enforcement provisions in it at all and no penalties for violation. That needs to change," Hawley said. He wants his office to have investigatory powers in records retention violation cases, and for the penalties of such violations to be equal to Sunshine Law violations.

"I'm anticipating a warm reaction," he said of expected support in the state Legislature, though no bills have been filed yet and no sponsors have stepped forward. "I'm looking forward to testifying in support of these measures and working with the Legislature to get something done this session," he added.

"I think that the Sunshine Law probably does need to be updated, as I've said in the past, to account for modern technology," like text messaging, private email and private devices, he continued. "My sense of this is this is just going to proliferate as technology's going to continue to evolve and change."