By Dennis Ellsworth
Executive Director, Missouri Sunshine Coalition
It has been almost 50 years since the original Missouri Sunshine Law was adopted by the State of Missouri. But over the years, the changes to that law usually have been an effort to ensure broader access to public information, not narrow the access, as is inherent in many changes proposed this legislative session by Rep. Bruce DeGroot, R-Ellisville, in HB 2049.
Since its early drafts, the law’s foundation has been that it is to be interpreted “liberally” to promote a public policy of the state that its meetings, records, and votes are open to the public unless otherwise closed under the law. However, Rep. DeGroot’s bill would limit this policy in situations where the language is unclear. In one section, it says to construe the law liberally, and in a section just a few lines below that it says it is not always to be “liberally construed.” This state policy change is stunning. And it is just the beginning of the changes he proposes.
The bill creates a new category of public records — “transitory records.” It slips that definition into another part of the Missouri statutes (Chapter 109) and defines such records as “draft” records, including a wide spectrum of other materials that temporarily are held by a public body. Besides encompassing a swamp of potential records no longer needing to be “retained,” this definition would change a decision of the Missouri Supreme Court that is more than 22 years old holding that if a public body has a record when a request comes in for it, it must produce it. Making this change in the law no doubt would lead to much cleaner desks as resource materials are destroyed as quickly as possible. Plus, it would leave up to the governmental body the decision as to whether a record is “public” or not, depending on its eventual permanency as a record rather than basing it on the simpler fact that it is a record being held by a public body at the time the request is made.
Another change proposed in the bill is an effort to undo a decision of the Missouri Supreme Court from last year, holding that when a record is created, it must be designated as either an “open” or “closed” record and that the cost of that process is not something that can be charged to a person seeking a copy of that record at the time the Sunshine Law request is made. The result of the misinterpretation of this language by public bodies in recent years was that the public was being charged unreasonably large attorney fees for the “separation” process of sorting open records from closed records at the time the request was made, creating another roadblock for the public in its efforts to access public information. Drafters of the Sunshine Law never envisioned that requestors of records would have to bear that cost because it was to have been incurred at the time the record was created.
And the problems with HB 2049 do not end there.
Despite the fact that citizens in this state — in huge numbers — have endured the pandemic while working at home and successfully keeping the state’s public and private businesses “going,” Rep. DeGroot’s bill would allow government to announce it was closing for a long period of time and, as a result, no longer must respond at all to public record requests during that period.
The bill also would narrow the definition of “public business” substantially, making some existing public meetings no longer public, including meetings of subcommittees. It would close generally available inter- and intra-agency memos from public review. It would close home addresses for employees or applicants for appointments based on a broadly written excuse of “security or safety” purposes, thus masking whether persons being named to such posts even reside in the jurisdiction. It would claim email addresses of citizens in the jurisdiction are not public records, thus hiding how those email addresses are being used.
These proposed new provisions in the law would make the idea of “sunshine” in Missouri, in many ways, a joke.
Rep. DeGroot has gone on record to claim computers and the iCloud have made it “all but impossible” for state and local government employees to comply with the Sunshine Law. But anyone who understands how computers work realizes that accessing public records is so much simpler today when a computer search takes minutes versus a hand-search of boxes of records that could take days. How can he claim that at times “compliance actually hurts the very citizens the Sunshine Law was intended to protect?” Transparency in government never hurt anyone except those who like to govern in secrecy.
Dennis Ellsworth is executive director of the Missouri Sunshine Coalition, a partnership of civic, business, nonprofit, state agency, and media members who support transparency in government. The group long has promoted awareness of the landmark 1973 Sunshine Law and the benefits it provides to the state’s residents.