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Capitol awash in Clean Missouri concerns

Capitol awash in Clean Missouri concerns

January 20th, 2019 by Joe Gamm in Local News

Chief Clerk of the House Dana Miller, right, looks on as Trevor Fox, director of Missouri House Communications, talks about the complexities of the new Clean Missouri Amendment.

Photo by Julie Smith /News Tribune.

The Missouri Sunshine Law provides 23 exemptions to its requirements that public officials provide open records.

And each of the 163 members of the Missouri House of Representatives is now a custodian of their own records and responsible for applying those exemptions when considering records requests.

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Confusion reigned after the Clean Missouri Amendment passed by a 2-1 margin in November, requiring members of Missouri's House and Senate to treat records, such as emails, as public records.

As one of its first acts during the 2019 General Assembly, House members last week passed a rule stating the members will essentially be able to decide which of their records qualify as open records.

Proponents of Clean Missouri question if the legislators have the authority to exempt themselves from the rules under the state Constitution.

But the legislators maintain the new rule is designed to protect constituents' personal information.

Days before House members made their decision, Dana Miller, the chief clerk of the House, and Trevor Fox, the House communications director, sat down with the New Tribune to discuss some of the challenges members of the lawmaking chamber could expect with Clean Missouri.

House members' constituents — particularly those who say they have no other resources — oftentimes consider their elected official as the person to reach out to when they're having trouble with an issue, Miller said.

It can be any of a number of items, Miller said.

But oftentimes, it is personal.

Fox's and Miller's offices have both fallen under the Sunshine Law since it went into effect in 1973. That being the case, both offices are knowledgeable about what records it applies to.

The Clerk's Office keeps and archives all bills, committee records, messages to the Senate, committee reports and other documents. The House Communications Office responds to requests for things such as members' expense accounts or House intern survey results.

However, keeping and distributing records is new for House members.

What records are public?

Miller's office hosted a series of meetings in late December, before the General Assembly gathered, to discuss and educate members about application of Clean Missouri and the Sunshine Law. The office has also hosted some workshops on what to expect when members receive public records requests.

"We have to educate members on what information could be considered closed — or that we would redact," Miller said. "It's not as easy as sometimes you'd think. You'd think it's in black and white." But, there are complications, such as legislative work products. With those, when House members go to the Drafting Department for legislation — called drafting — the communications between the member and the department was always considered confidential, like an attorney/client privilege between the member and the drafting agent.

"(It's) because there's a need for that confidentiality when you're formulating legislation and policy and you haven't necessarily filed it yet," Miller said. "Once the legislation is filed — and a member takes it, brings it in and has a number assigned to it — then it is considered an open record, and it's printed, and it's out there."

From the time a lawmaker considers a policy they want to formulate, the parties begin a back and forth with each other to tweak it.

"Those are areas that I think perhaps are covered in here (Sunshine Law exemptions), but it's not exactly clear. So, there are questions that come up," Miller said. "I've stressed to members that we're not trying to create barriers."

The Sunshine Law also allows reasonable charges. For instance, the clerk's office typically charges $10 an hour for copying charges. However, being in the digital age, her office more commonly charges for a thumb drive.

It puts all the requested information on a thumb drive and doesn't necessarily create a paper copy. The charge for the drive is about $4-$5, Miller said.

For information that has to be redacted from a page, the page is printed, blacked out in the appropriate spaces and scanned back in before being placed on the thumb drive.

Oftentimes, an attorney may be asked to view the response to see that the correct information is redacted.

Because members have different email groups and list, responses to requests for emails from them will vary.

"That's what we need to keep in mind. Every member's office is going to have varying levels of correspondence and documents that come to them," Miller said. "It's going to take time to produce it."

More access to hearings

Clean Missouri does more than just open up records, she said. It also requires almost all hearings are to be open and that the public can come in and record video.

The House, Fox said, has always had an open approach to its hearings. If somebody has wanted to record, staff notified the committee chairperson.

Most have agreed, she said, unless the requestor has been disruptive or otherwise somehow obtrusive to the proceeding.

The same rules that apply in the House on the floor also apply in the committees. There's a speaker or chairperson who sets the tone. Fox works with them on media requests to record sessions.

House committees only close sessions for investigatory personnel actions, security issues and other situations that come into play where there are exemptions in the Sunshine Law.

Additionally, the House tries to stream as many of its hearings as it can.

"For the floor session itself, we're trying to partner with Mediacom to have a channel here, at least within the building, where people can watch, instead of trying to watch it on their computer and tying up all the bandwidth," Fox said.

That would ease some of the strain on the House's Wi-Fi connections.

"We have expanded our Wi-Fi capabilities," Miller said. "We keep growing that. There's always more demand. The more we put out there, the more it gets eaten up."

What about gifts?

Gifts are a big issue with Clean Missouri.

Clean Missouri puts a limitation on gifts at $5.

"With freshman members, we went through each provision and spelled out what the law was. And then we said, 'Use your common sense,'" Miller said. "We don't know exactly what the $5 per occurrence means. Is that $5 per day? Is it $5 per hour?"

House staff have asked the Missouri Ethics Commission to weigh in on the question.

"I would think that interpretation would be something for an entity like the Ethics Commission to make," Miller said.

One media outlet "tested" lawmakers shortly after Clean Missouri passed, Fox said. The outlet made requests of all existing House members — each individually — for emails for a 10-day span.

As part of the Sunshine Law, members are now required to acknowledge the request, not necessarily with the response, within three days.

The media outlet apparently received acknowledgments from 100 percent of House members, Fox said.

The House, as an institution, has always been responsive to Sunshine Law requests, Fox said.

"Now, this is something else entirely," he said. "We hope that when media make those requests, members reach out to us so we can support them with the infrastructure we have. That's not a given, since they are the custodians of their own records."