Missouri Open Meetings and Records law needs clarity

Thursday, September 24, 2015

A Tribune report last month described a tug of war for emails among supporters of opposing Republican candidates for attorney general in 2016. At the center of the contest is the University of Missouri, the employer of Josh Hawley, a faculty member with the MU School of Law, who wants to be Missouri attorney general.

Hawley's primary opponent is Missouri Sen. Kurt Schaefer of Columbia. Allies of Schaefer, suspecting Hawley received preferential treatment by his employer, the state university, requested all of the prof's MU email correspondence during a certain period. A counter request by Hawley's supporters, who suspect Schaefer of attempting to improperly influence university officials, made for an interesting report by the Tribune's Rudi Keller.

The university's response was instructive. A UM legal adviser interprets the Sunshine Law as exempting personal email correspondence even if it is created and retained on a public governmental body's system. Such an exemption does not exist in the law, says MPA's expert Jean Maneke.

Meanwhile, the Schaefer ally who requested the emails also asked for additional documents that include Hawley's expense records and any complaints lodged against the MU professor. The university says it has identified 3,500 documents responsive to the request and has charged the requestor $5,000 so far.

Two observations that deserve thought by MPA members as the 2016 election season approaches: The Missouri Open Meetings and Records law needs clarity on the issue of emails and other electronic correspondence such as text messages.

A lawsuit could possibly settle the question of personal emails, but that would be an expensive and unnecessarily adversarial solution. An opinion by the Missouri attorney general might be helpful, but don't hold your breath. A legislative mandate would remove the doubt.

And while it's at it, the legislature should look at the cost of acquiring public records. For example, is $5,000 a reasonable amount to charge for documents that are supposed to be open and available to the public? That openness -- transparency -- is meant to allow the public to achieve a greater understanding of the workings of government as well as to perform an important watchdog role. Placing a financial barrier across access to such documents makes a sham of the law.

It doesn't have to work that way. Several states offer free access to public documents with a generous limit on copies. That would more closely represent real transparency.

Absent that, the legislature could help by truly defining reasonable costs, including a clarification that public bodies have the responsibility and must bear the cost of reviewing records for exempt content.

These reforms are important not only because the Sunshine Law is a crucial tool for newsgathering, but also because the public -- our readers -- deserves access to public documents that is as unfettered as possible.

-Missouri Press Service