It’s been a few years since I traded my reporter’s notebook for an editor’s chair, but I found myself treading familiar ground on a recent trip to the City Clerk’s office.
The office was mostly as I remembered it, with a few new faces, and I was pointed quickly to my objective: a green file folder, packed to the gills with copies of emails sent to City Council.
The messages, which are printed out and open to public view, were snapshots of the issues capturing the community’s attention: An out-of-town letter writer described a pit bull attack, while residents wrote to lobby against a zoning change and suggest edits to the recently approved short-term rental ordinance.
Along with the public agendas the city posts online, those papers and electronic documents provide a clear, wide window into City Council’s decision-making process, ensuring public business is conducted in public view.
If the Missouri legislature continues on its present course, those documents, and a vast swath of other public records, could be withheld from citizens.
The looming veil of secrecy comes from proposed changes, already approved in the Missouri House, to the state Sunshine Law.
Missouri’s open-records law, which was adopted in 1973 as the Watergate scandal roiled Washington, starts with the assumption that government business is the public’s business. It requires, with relatively few exceptions, that meetings, records and deliberations of government bodies be accessible to citizens.
Legislators have long considered themselves outside the authority of the Sunshine Law. Clean Missouri, the constitutional amendment approved in November by 62 percent of state voters, changed that, making clear that individual lawmakers’ emails and other records are subject to public scrutiny.
I can’t say I was surprised when legislators almost immediately moved to undo the change. In the first days of the 2019 session, House Republicans passed an (arguably unconstitutional) rule change allowing members to opt out of compliance.
An amendment by Rep. Nick Schroer, R-O’Fallon, which was tacked onto a bill limiting lobbyist gifts, goes much further. It would allow members of government bodies — from a county zoning board to City Hall to the statehouse — to withhold most any document they send or receive that consists of “advice, opinions and recommendations” connected to the decision-making process or constituent requests for information or favors.
Critics in the press and the legal community have sounded the alarm, saying the bill would gut the existing Sunshine Law and hamper the public’s ability to monitor government at the state and local levels.
Those warnings did little to slow the bill’s rush through the House. Voted on Thursday, the bill containing the Sunshine Law changes was approved with the support of 96 of the 114 members of the Republican supermajority. Fourteen Republicans cast ‘no’ votes while four were absent. Seven House Democrats voted for the bill, with 33 voting ‘no’ and seven absent.
The bill, which could now head to the state Senate and from there to the governor’s desk, would have far-reaching consequences for folks in Springfield and the rest of the state, drastically limiting their ability to keep tabs on local law enforcement, university curators, elected officials and government agencies.
Here are a few things that could change:
Does that person actually live here?
The first addition contained in the House bill would allow those in charge of government records to withhold mention of “personal cellular telephone numbers, Social Security numbers, and home addresses of any individuals.”
That might sound good on the surface — who doesn’t value personal privacy? — but in practice, it isn’t so simple. (Social Security numbers, by the way, already are protected from disclosure under state law.)
Allowing addresses to be withheld would be a major change, because they’re such a common method for determining whether a person is a resident. In Springfield, for example, candidates for City Council must gather the signatures of a certain number of local voters to be put on the ballot. If addresses are withheld, there’s no way for the public to check that petitions were processed accurately and fairly.
Same thing for initiative petitions — the next time someone wants to decriminalize marijuana or ban minors from bars, voters will just have to take the city’s word about whether the signatures were sufficient to get on the ballot.
Want to know whether folks testifying on council bills (or writing the emails that end up in that green folder) actually live in town? That would no longer be considered public knowledge.
Things could get even weirder with regard to police records, neighborhood complaints and other enforcement actions.
Although they’d still be required to disclose the locations of reported crimes in initial reports, police potentially could withhold addresses in other records, along with the addresses of suspects who commit crimes in other people’s homes.
Forget about investigating neighborhood nuisances — as long as someone lives in them, properties with repeat offenses could be shielded from public view.
And what if the city discovers a leaking sewer pipe or another environmental hazard? The addresses of any inhabited homes that were affected potentially could be kept secret.
Another innocuous-sounding change would allow elected officials, board members and others to keep secret “constituent case files,” defined as “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.”
Translated, that means just about any message between a voter and an elected or appointed official could be kept out of public view, as long as it involved some sort of question (“How are you going to vote on this bill?) or request (“I’d like you to vote this way on that bill.”) And don’t forget, big-time donors and lobbyists can be constituents, too.
Like state lawmakers, council members often are inundated with comments about upcoming ordinances and agenda items. It can be illuminating to know who is seeking to influence decisions — and whether they’re residents or out-of-town activists spamming City Council with form letters, as has been the case in recent years when council debated controversial topics like the pit-bull ban and the sexual orientation and gender identity ordinance.
(Of course, if addresses can be redacted willy-nilly, the public would have no way of knowing who’s actually a constituent and who’s not.)
Under the proposed legislation, those messages, which make up the bulk of that green file folder in the clerk’s office, could be kept under lock and key. Are elected representatives listening to the people, or special interests? If these changes become law, you’ll just have to take their word for it.
Secret staff reports
The third exemption added in the House bill would ensure that just about anything else contained in my favorite green folder, along with a fair chunk of the city’s public agenda, could be hidden from view.
It would allow any email, report or document “received or prepared by or on behalf of a member of a public governmental body” to be kept secret if it contains “advice, opinions and recommendations in connection with the deliberative decision-making process of said body.”
Translation: Any document suggesting how a potential bill, ordinance or other official decision should be handled — whether that advice comes from inside or outside government, from a constituent, staff member or an out-of-state donor — could be kept confidential.
Perversely, even citizen task force reports could be closed under this provision. Imagine, for example, if the Springfield school board had decided it didn’t like the recommendations made by the Community Task Force on Facilities and opted to bury the report, instead?
Beyond the obvious threat of special interests feeding biased information to decision-makers, staff reports also could be hidden from view. Does it matter to you whether county commissioners and City Utilities board members are receiving complete and accurate information? Should the public know if elected officials were warned against a course of action that ended up wasting taxpayer money?
Even responsible employees make mistakes, and a number have been caught over the years because an eagle-eyed citizen or journalist took the time to comb through a staff report. Without public access to those documents, inaccuracies — whether intentional or inadvertent — would go unscrutinized and uncorrected.
Still time to speak out
It’s not clear whether the House members who approved the bill understood the potential fallout (although at least one lawmaker sounded the alarm, according to news accounts.)
Schroer, the sponsor, told the St. Louis Post-Dispatch he didn’t know the bill would apply to local governments.
“That’s not something that was brought to my attention,” Schroer said, according to the newspaper. “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’s goal, according to the Post-Dispatch, was “to protect constituents from having their political beliefs or personal matters aired in public.”
An alternate theory I heard in the Capitol last week was that the move was prompted at least in part by legislators’ annoyance at a broadly worded Sunshine request seeking legislative emails that a Kansas City Star reporter filed soon after Clean Missouri became law. I have no special insight into the accuracy of either explanation.
However much thought did or did not go into the House bill, and whatever the motivation for it, the detrimental effects on government transparency and accountability are considerably more clear.
Fortunately, there’s still time to make your thoughts known.
Leaders in the Missouri Senate have indicated they’ll edit the bill when it comes to them, a move supported by the bill’s sponsor in the House.
Senators Lincoln Hough and Eric Burlison are the two Springfield-area officials in that chamber. Contact information for their offices can be found at www.senate.mo.gov.
To look up your representative in the House, go to www.house.mo.gov.
If you’d like to take a look at the proposed bill yourself, you can find the current text of House Bill 445 online on the House site, as well. The Sunshine Law changes begin on Page 17.