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Missouri legislators trying to change open records law; critics say they are gutting it

Missouri legislators trying to change open records law; critics say they are gutting it

February 10th, 2019 by Bob Watson in Local News

Sally Ince/ News Tribune Gov. Mike Parson speaks to reporters January 31, 2019, during the Associated Press and Missouri Press Association lunch at the Governor's Mansion. The governor met with press staff and discussed what he plans to acheive throughout the state.

Missouri representatives last week sent the Senate a bill that, critics said, would be a “radical” change in the state’s open records laws.

The bill includes an amendment that would keep records from being public if they are “received or prepared by or on behalf of a member of a public governmental body” and consist of “advice, opinions and recommendations in connection with the deliberative decision-making process of said body.”

Supporters of the proposed change say they’re trying to protect the privacy of constituents who contact lawmakers with personal issues. They note that, until voters changed the Constitution last November, those communications were not considered “open” records under what generally is known as the Sunshine Law.

That law requires government agencies — at all levels — to be open and accessible to the public, including the ability to see and review many public records.

And supporters of the Sunshine Law say that access is important for residents to understand how their government agencies operate on the public’s behalf.

Just since last July 1 — the start of the state government’s current business year — most of the six statewide elected officials and 16 executive departments and agencies report receiving more than 8,300 requests for information under the law’s requirements.

Opponents of the House-passed bill argue it does more than protect individuals’ privacy.

Rep. Jon Carpenter, D-Kansas City, argued during Thursday’s House debate that the bill would allow almost all government records to be closed.

“Almost unquestionably if this bill passes, it’s going to be the most radical undermining of open records and transparency law in state history,” Carpenter said.

The Sunshine Law

Since 1973, Missouri’s Open Meetings/Open Records, or Sunshine Law, has required government agencies to be more transparent in their activities.

And since 1987, the law has been clear that Missouri’s public policy requires “that meetings, records, votes, actions, and deliberations of public governmental bodies be open to the public” — and provisions of the law are to “be liberally construed and their exceptions strictly construed to promote this public policy.”

In addition, the law says — with some exceptions required by other parts of the state’s laws — “all public meetings of public governmental bodies shall be open to the public … all public records of public governmental bodies shall be open to the public for inspection and copying (and) all public votes of public governmental bodies shall be recorded as set forth in” the law.

The law covers nearly all “public” bodies, including city councils, county commissions, school boards, fire, water and ambulance districts, university curators, and state agencies — and requires their meetings to be open to the public and that their meeting agendas be publicized at least 24 hours in advance, although the law contains a number of exceptions to that requirement.

The law generally doesn’t apply to the courts, which provide access to their records under separate rules authorized by the Missouri Constitution.

And, the state Supreme Court ruled a couple years ago, the Constitution allowed the Legislature to set its own rules — a provision voters changed Nov. 6 with the passage of Amendment 1, known as Clean Missouri.

Handling Sunshine requests

The law requires official requests to be made in writing, and the governmental body getting the request has three days to respond — or to explain why the answer will take longer than three days.

But the law also allows the government agency to charge for the time a staff member takes to search for the answer to a question — and to charge for copies produced — although the law also allows those fees to be waived.

A News Tribune survey last week of state agencies shows many requests take much longer than three days to be completed — with some taking more than a month to be resolved.

At a recent luncheon with reporters and editors from the Associated Press and the Missouri Press Association, Gov. Mike Parson said: “As a matter of fact, we have now hired a full-time attorney to do nothing but Sunshine requests in the governor’s office. That’s all they do.”

While the governor has hired someone to focus on open records requests, many other state officeholders and agencies leave that work to the general counsel — or to staff who also have many other duties.

The News Tribune asked all state departments for a quick report on their Sunshine Law activity since last July 1 — the beginning of the state’s business year.

Of the total 8,300-plus requests the departments and officials received, the Department of Higher Education said it received only two requests, while the Department of Public Safety’s eight divisions (plus the director’s office) had a total of 4,065 requests.

Who files Sunshine requests?

While many think the law is for the media, it really impacts the way government agencies — including the state, counties, cities, school boards, and special districts like public fire or ambulance services — interact with the general public.

Of the more than 8,300 requests since last July 1, the agencies said, around 300 came from the media.

“We routinely respond to informational requests from the media without going through the formal Sunshine process,” Steph Deidrick, Galloway’s spokeswoman, said — echoing comments made by a number of the departments in their responses to the News Tribune’s survey.

For example, Maura Browning, Secretary of State Jay Ashcroft’s spokeswoman, said: “The majority of the requests for voter data comes from candidates, committees or organizations — very few are from the media. Generally, the fee for these reports is either $20 or $35, (and) I am more likely to think of those as routine requests rather than Sunshine requests.”

And the Department of Corrections’ Karen Pojmann said: “Some requests are addressed very quickly — with a simple phone call or a link to a document on our website, for example. Those requests and responses might not go through our public information office or legal offices and might not be logged or tracked. Other requests and responses that are more complicated, entail research time, or require legal expertise regarding security or privacy are logged and tracked.”

Most of the officials, departments and agencies said they didn’t charge for many of the requests they received.

Of the more than 8,300 requests made since last July 1, only around 1,100 generated research and/or copying charges, for a total cost of nearly $56,610.

Some of those charges have been pre-set.

For instance, Mary Compton, spokeswoman for State Treasurer Scott Fitzpatrick, said 24 requests were answered “after charges were imposed — the total amount collected was $319.10. All Sunshine requests that incurred charges were related to Unclaimed Property records, and incurred the standard rates for such records.”

For years, the attorney general’s office has been a clearinghouse for Sunshine Law information, both to the public and to all the government entities affected by it.

Attorney General Eric Schmitt — appointed to the office after Josh Hawley won the U.S. Senate seat — said last month he sees no need to create a special division handling only Sunshine Law issues.

“It’s a very important role for our office,” Schmitt told reporters and editors Jan. 31. “Our general counsel’s office is kind of overseeing the Sunshine requests (we receive) in our government affairs section, that deals with that. So there will be continuity with that.”

Schmitt, who served eight years in the Missouri Senate before being elected state treasurer in 2016, didn’t offer any specific changes to the law — with spokesman Chris Nuelle saying the staff is following proposed legislation, but not commenting on it.

Need to update the law?

Attorney Dave Roland, of the Freedom Center of Missouri, based in Mexico, has litigated a number of Sunshine Law cases — including the Cole County case where both the circuit and appeals courts ruled former Cole County Prosecutor Mark Richardson violated the law when he didn’t provide Aaron Malin with answers to questions about communications between Richardson’s office and the Mustang Drug Task Force — a decision expected to cost the prosecutor’s office nearly $40,000.

Roland told the News Tribune: “Yes, the Sunshine Law needs to be updated. Two years ago, a study by the State Auditor’s Office showed that only about 30 percent of government entities fully complied with simple requests for open public records. That is totally unacceptable.”

Roland argued the reason many government entities “are so lax about complying” with the law is, “given the way courts currently interpret the Sunshine Law, it is extraordinarily rare for government officials to face any consequences for their violations. In the absence of any likely consequences for violating the Sunshine Law, officials have little incentive to understand and comply with their obligation to be transparent to the public.”

While many attorneys support the idea of making it easier to recover litigation expenses when a court finds a violation of the Sunshine Law, he said — an idea that “certainly” would be good for attorneys’ paychecks — Roland doesn’t think that’s “the best way to improve transparency. As Cole County has recently seen, when courts award civil penalties and attorneys fees, it is usually the taxpayers rather than the officials responsible for the violations who bear that cost.

“That may end up in an elected official being voted out of their office … but what if the person responsible for the violation is not directly accountable to the voters?”

He suggested “a better solution would be to require those responsible for complying with the Sunshine Law to personally bear some consequences for violating (it). That would give the public officials some skin in the game, dramatically increasing their incentives to understand the law and apply it correctly.”

Proposed Sunshine changes

In addition to the amendment adopted last week, at least four bills have been introduced in the House this year, proposing changes to the existing law:

• House Bill 230, sponsored by Rep. Chris Dinkins, R-Annapolis — would require some Corrections department records to be closed, including video recordings of the interior or exterior of a correctional center; audio recordings and transcripts of offenders’ telephone conversations; employee staffing patterns and defensive tactics training curriculum; and some correctional center operations.

• HB 348, by Rep. Tony Lovasco, R-O’Fallon — adds as exceptions to disclosure requirements, all written or electronic communications, memorandums, personal notes or documentation relating to communications between a member of the General Assembly and a person or entity who is not a member of the General Assembly; and communications among members and employees of the state, where such communications involve the official acts, powers and duties of a public official or employee.

• HB 386, by Rep. Mark Ellebracht, D-Liberty — amends the law’s definition of “public record” to include the social media pages of a public governmental body, including the personal social media pages of members of the governmental body in specified circumstances; and expands the requirements for preservation of communications through electronic means, including social media accounts, requiring the public entity to produce records in usable electronic format.

• HB 765, by Rep. Dan Shaul, R-Imperial — modifies the law’s definition of “executive agency,” to include joint legislative committees, so that specified record-sharing requirements will apply equally to executive branch agencies and those committees.

So far, none of the separate bills have been debated by the full House.

Backers of the amendment passed last week said they wanted to shield correspondence between constituents and lawmakers after the Clean Missouri amendment made it subject to the Sunshine Law.

Even before it passed, Sean Soendker Nicholson said the law change isn’t needed.

He headed the Clean Missouri campaign that placed Amendment 1 on last November’s ballot.

“There are already provisions in state law to protect personal information of constituents, and documents are redacted or closed according to those rules, from the governor’s office down to city councils,” Nicholson told the News Tribune last month. “Amendment 1 says that the Legislature must follow the generally applicable laws that they impose on everyone else — no more, no less.

“The language was intentionally crafted to allow for updates to open records rules, to reflect changing technology” — noting the Confide mobile phone application that erases text messages “did not exist when Sunshine Law was first passed.”

Nicholson said the Amendment 1 language also was intended “to strike the right balance between the public right to know what their government is doing, and the public’s right to keep personally identifiable information private.”

The Associated Press contributed some information used in this article.