Originally published by the St. Louis Post-Dispatch on February 5, 2019
The Missouri House could give final approval as early as this week to legislation that critics say would gut the state’s open records law and close off myriad government documents from scrutiny.
“It’s a broadside attack on the Sunshine Law,” said Mark Pedroli, a lawyer in St. Louis County who has led a yearlong investigation into then- Gov. Eric Greitens’ alleged destruction of public records. “It will eviscerate it as we know it.”
Legislators added the restrictions Monday evening to legislation that would forbid most lobbyist gifts to local officials. The GOP-controlled House also approved a Democratic-sponsored amendment that would ban elected officials from using software such as Confide, which automatically deletes electronic messages.
But the changes to the Watergate-era Sunshine Law caught the most attention. Transparency advocates said the move to shroud government documents marked a reversal from last legislative session, when House lawmakers voted to give the attorney general’s office more powers to enforce the Sunshine Law.
That vote came amid scandal over Greitens and his staff’s use of the Confide app.
“At that point there was some really strong interest in enforcement of the Sunshine Law,” said Jean Maneke, counsel for the Missouri Press Association. “But this is definitely a turn — 180 degrees — in the other direction.”
The push to restrict certain records comes three months after voters overwhelmingly approved Amendment 1, a constitutional change that subjects legislators to the Sunshine Law.
The House voted last month to change its operating rules to tighten access to records, but observers questioned whether the House had the ability to legally avoid the constitutional requirements through a rule change.
Now, lawmakers are attempting to change the Sunshine Law.
Because the change to the law applies to members of a “public governmental body,” opponents worry the change would tighten access to information at the local level on up.
“That’s not something that was brought to my attention,” said Rep. Nick Schroer, R-O’Fallon, the sponsor of the amendment. “That’s not something that I thought it did. And, frankly, I don’t know if it’s going to or not. That wasn’t the intention of it.”
Schroer said he was seeking to protect constituents from having their political beliefs or personal matters aired in public.
One constituent, Schroer said, voiced concerns about his union membership.
“If that information were to get out, I don’t think that that constituent would like it,” Schroer said. “I don’t think the Sunshine Law was created so that we can tap into our constituents’ political beliefs or private information.”
The changes exempt personal cellphone numbers, Social Security numbers and home addresses from disclosure, though Social Security numbers are already exempt from disclosure under the Sunshine Law. (There is some debate over whether the Social Security number exemption applies to legislative records.)
The changes receiving the most attention, however, exempt records “received or prepared by or on behalf of a member of a public governmental body” that consist of “advice, opinions and recommendations in connection with the deliberative decision-making process of said body.”
Schroer also seeks to exempt “constituent case files,” which include “any correspondence, written or electronic, between a member of a public governmental body and a constituent pertaining to a constituent’s request for information or assistance.”
The effects of the legislation, Pedroli said, would be far-reaching.
“The two of those things added up together,” Pedroli said of Schroer’s latter two provisions, “constitute about 95 percent of the documents that I get from state government pursuant to Sunshine requests.”
The provision that exempts “opinions,” Pedroli said, is particularly troubling.
“It creates a privilege for all internal communications as well as external communications, about opinions,” Pedroli said. “That’s what government is. They’re trying to block it all.”
Pedroli said he was still trying to figure out who in Greitens’ office sent a message last year indicating that the office had advance knowledge of a report by the attorney general’s office that would clear the governor in the Confide dispute.
Pedroli said that the message was sent to Greitens aide Will Scharf but that the sender’s contact information was redacted. Scharf said he didn’t recall who had sent the message.
Pedroli said that if the personal cellphone exemption went into effect, the governor’s office would probably have the legal footing to keep cellphone numbers redacted.
Chuck Hatfield, a Democratic lawyer and former aide to then- Attorney General Jay Nixon, said in an email that the Legislature’s efforts would mark a “significant expansion” of what is considered a closed record under Missouri law.
He said that unlike federal law, Missouri did not recognize a “deliberative process” privilege. He said Schroer’s language would establish that privilege. And while the federal law exempts “inter-agency or intra-agency memorandums or letters,” Missouri law would go further, exempting information that comes into an agency or office from an outside source.
“On its face it would allow closure of any communications — from constituents, lobbyists, donors, out of state interests — that relate in any way to deliberations,” Hatfield said. “That would be a significant expansion of the traditional protections of the deliberative process privilege.”
Sandra Davidson, a communications law professor at the Missouri School of Journalism, called the bill “anti-transparency” and said it would probably lead to negative public policy outcomes if approved.
People need access to records to vet information and decide how it should guide policy, she said.
“If you have it out there and people know about it, perhaps people will be able to say, ‘Wait a minute,’” Davidson said. If the information is closed, “you’re having the decision-making process going on with information that is not vetted by the public.”
If the measure clears the House, the Senate will consider it.
Schroer said he was willing to alter his proposal and was open to suggestions.