A ‘broadside attack’: Critics alarmed over proposed changes to Missouri Sunshine Law

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.

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The enemies of sunshine are at it again in Missouri. They need to be stopped.

Originally published by the St. Louis Post-Dispatch on February 5, 2019

What is Missouri state Rep. Nick Schroer’s problem with the concept of keeping public information open to the public? Last month, the O’Fallon Republican sponsored House rules restricting release of public records, thumbing a nose at November’s “Clean Missouri” measure meant to open them. Now he wants to change the state’s Sunshine Law to further restrict what the public can know.

The enemies of open government in Missouri have made clear they have no regard for either the principle of transparency or the overwhelming will of the people. Sunshine advocates should challenge the new House rules in court, and the full House should soundly defeat Schroer’s latest anti-sunshine measure.

On Nov. 6, more than 60 percent of Missouri voters approved Amendment 1 — “Clean Missouri” — which changed the state constitution to make the Sunshine Law apply to legislators, who previously had exempted themselves.

Last month’s new House rules, which Schroer sponsored, effectively said: Not so fast. House members re-exempted themselves from the voters’ new constitutional mandate. Members approved the rules on a voice vote, providing no record of who voted which way. House rules require no Senate or gubernatorial approval.

How convenient for Rep. Schroer that his gambit to block sunshine in the House was achieved under the cloak of darkness. Clean Missouri’s promoters should waste no time putting this measure before a judge.

Schroer’s latest attempt to draw the shades came Monday, when he attached an amendment to pending legislation. As the Post-Dispatch’s Jack Suntrup reports, Schroer this time wants to change not just the House rules but the Sunshine Law itself, to broaden Missouri elected officials’ ability to block public access to a wide array of information.

If he gets his way, the public could be denied information regarding “advice, opinions and recommendations in connection with the deliberative decision-making process of said body” — a sweeping standard that could effectively hide from view just about anything short of a floor vote.

In typical fashion, the foes of transparency are misusing a few generally reasonable propositions, like the necessity of shielding Social Security numbers and other legitimately private information, as an excuse to reduce access to data that should be public.

If Schroer and his allies believe the Sunshine Law’s existing privacy exemptions weren’t properly extended with Clean Missouri, they could propose legislation specifying just those limited exemptions. But that’s not what they’re doing here. As Rep. Jon Carpenter, D-Kansas City, put it, “We’re not going to have to turn over virtually anything” under Schroer’s plan.

The final bill with Schroer’s sun-blocking amendment on it — House Bill 445— could get a House vote this week. This time, everyone who votes for darkness will have that vote recorded. Missourians who just three months ago voted for sunshine will be watching.

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‘We’re not going to have to turn over virtually anything’: Missouri House votes to curb Sunshine Law

Originally published by the St. Louis Post-Dispatch on February 4, 2019

The Missouri House on Monday voted to weaken the state’s Sunshine Law, a Watergate-era measure routinely used by citizens to access information that could otherwise be kept secret by public officials.

During debate on a bill related to lobbyist gift bans, Rep. Nick Schroer, R-O’Fallon, proposed an amendment that would add exemptions to the law.

Lawmakers in the GOP-controlled House attached Schroer’s amendment to the bill on a voice vote, meaning none of their individual stances were recorded.

Schroer’s amendment exempts 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 wants 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.”

Rep. Jon Carpenter, D-Kansas City, said he opposed Schroer’s amendment, even though he supported one provision that exempts Social Security numbers, personal cell phone numbers and home addresses from disclosure.

“We’re not going to have to turn over virtually anything,” Carpenter said in arguing against changing the Sunshine Law.

He said the change would apply to all local and state government officials, not just members of the Legislature.

Schroer and allies said they were fighting to keep records relating to their constituents private.

“It has nothing to do with us,” said Rep. Ron Hicks, R-Dardenne Prairie.

Lawmakers also attached an amendment sponsored by Rep. Gina Mitten, D-Richmond Heights, that would forbid elected officials from downloading or using software that automatically deletes electronic messages.

Former Gov. Eric Greitens and his staff used Confide, a smartphone app that automatically deletes text messages, in likely violation of the Sunshine Law.

The underlying legislation still must receive final approval in the House before the Senate considers it.

Schroer last month sponsored changes to Missouri House rules that contain similar restrictions. He did so in response to the voter-approved Amendment 1, which subjects legislators to the Sunshine Law.

The legislation is House Bill 445.

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Missouri House votes in favor of major limitation to state open records law

Originally published in the Columbia Missourian on February 4, 2019

JEFFERSON CITY — A proposal that one lawmaker worries will exempt most correspondence by elected officials from the Sunshine Law was preliminarily approved by the Missouri House of Representatives on Monday.

While debating a bill to restrict lobbyist gifts to government officials, Rep. Nick Schroer, R-O’Fallon, introduced an amendment to exempt “any correspondence, written or electronic, between a member of a public governmental body and a constituent pertaining to a constituent’s request for information” and exempt any document or record “received or prepared by or on behalf of a member of a public governmental body consisting of advice, opinions and recommendations in connection with the deliberative decision-making process of said body.” The amendment passed and will now be a part of House Bill 445.

Rep. Jon Carpenter, D-Kansas City, said this will exempt almost every correspondence by elected officials from the state open records law. He said the Sunshine Law currently protects private and sensitive information, pointing to a list of exceptions that already exist in the law.

Supporters of the amendment say it will protect constituents’ private information that can currently be accessed through the Sunshine Law. The amendment also has provisions to protect constituents’ social security numbers, phone numbers and addresses.

This amendment comes after the passage of Clean Missouri, which subjects legislators to the Sunshine Law.

An amendment introduced by Rep. Gina Mitten, D-St. Louis, to forbid elected officials and their staff to “download or use software designed to send encrypted messages by electronic means that automatically self-destruct” also passed.

House Bill 445 attempts to extend restrictions on gifts from lobbyists to local government officials. The bill was passed with amendments by a voice vote, meaning no record exists of who voted yes or no, and will be brought up again later this week.

House Minority Floor Leader Crystal Quade, D-Springfield, expressed concern with the significant changes to the bill that will not be discussed in committee.

“There are revisions that people should have the chance to testify on,” she said.

Bill sponsor Rep. Shamed Dogan, R-Ballwin, said the bill’s lobbying limit takes a policy people say they want at the state level down to the local level.

The bill extends the lobbying provisions in Clean Missouri, which Missouri voters passed in November with 62 percent support.

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Missouri lawmakers advance bill to limit open records law

Originally published by the Quincy Herald-Whig on February 4, 2019

Missouri lawmakers on Monday advanced a proposal that one critic said would gut the state’s open records law.

House members in a voice vote gave initial approval to legislation that keeps records from being public if they are “received or prepared by or on behalf of a member of a public governmental body” and consist of “advice, opinions and recommendations in connection with the deliberative decision-making process of said body.”

“What that means is everything,” Democratic Rep. Jon Carpenter, of Kansas City, told colleagues on the House floor. “I’m not sure what would be left, to be honest.”

Rep. Nick Schroer said that wasn’t his intent when he pitched the amendment , which was tacked on to another ethics proposal.

Schroer, a Republican from O’Fallon, said his goal is to protect constituents’ private information and prevent constituent surveys from being released publicly after voters in November passed a constitutional amendment that made lawmakers subject to state open-records laws.

He said records such as constituents’ Social Security numbers, birthdates and requests for help with drug treatment should be kept private.

But Carpenter said Schroer’s amendment goes beyond that. Carpenter proposed only allowing officials to redact cellphone numbers, Social Security numbers and home addresses. The proposal failed 109-42.

Schroer said he’s open to working on his amendment’s language.

“I honestly could care less if somebody Sunshines my emails between myself and the speaker, or myself and a lobbyist,” Schroer said. “Honestly, I don’t care. Send it out there. I think the public should have access to that.”

The legislation needs another House vote of approval to move to the Senate.

The underlying bill also would cap political donations to local candidates at $2,000.

Missouri voters in 2016 approved a cap on political donations to candidates for the Legislature and statewide offices at $2,600, but lowered the limit to $2,500 for senators and $2,000 for state representatives in November. Candidates for local offices are not currently covered by those limits.

Republican Rep. Shamed Dogan’s bill would also extend other ethics policies that lawmakers and statewide officials now face to local officials, including a $5-a-day lobbyist gift limit and a two-year ban on lobbying after leaving office.

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Legislators need to follow their own Sunshine Laws

Originally published by the Call Newspapers on February 1, 2019

The Missouri Legislature designs and governs Sunshine Law for every public official in the state.

But ironically, the Legislature has historically exempted itself from that very law that it tells other government officials to follow.

Emails to the governor, a school superintendent, a county executive or a city dogcatcher are public record. And voters believed that Jefferson City legislators should have to follow their own rules and voted for that change as part of the Clean Missouri amendment to the Missouri Constitution in November.

So we’re not sure if it’s sad or appropriate that the legislators of the 100th General Assembly saw fit to limit public access to their own records as their first act in office.

It’s sad because this move goes against all the hallmarks of good government like openness and transparency, but it’s also appropriate in a way. Since legislators have always violated their own Sunshine Law, why stop? By now, this hypocrisy is a Jefferson City tradition.

The irony among our local Republican legislators who voted for this is that many of them oppose a statewide vote for Better Together’s plan for a city-county merger into a new megacity of St. Louis.

They say voters should be able to speak their minds and that their will should be followed when it comes to their government.

So why is the case of Clean Missouri and the Sunshine Law any different? But in this case, legislators statewide are ignoring the will of the people statewide. Voters from across Missouri overwhelmingly said they want better ethics in government, including legislators having to abide by the Sunshine Law.

The very reason that efforts like Clean Missouri go for constitutional amendments instead of just statewide referendums is because Missouri legislators have a terrible track record of ignoring the will of the voters. They first did it with concealed carry.

Most recently and egregiously, they ignored the “puppy mill bill” that was passed by voters to try to keep Missouri from continually taking a place atop the rankings of the worst states for puppy mills. The problem that Missouri voters tried to solve a decade ago is still a problem, thanks to legislators, with a puppy mill bust happening in St. Charles just last week.

And so it goes with the Sunshine Law. Will this also still be an issue a decade from now? We hope not.

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When it comes to Sunshine Law, Missouri is the Show-Me State no more

Originally published by columnist Tony Messenger in the St. Louis Post-Dispatch on January 20, 2019

Roll over in your grave, Willard Duncan Vandiver.

Missouri is the Show-Me State no more.

Vandiver is the former U.S. Congressman who in a speech in 1899 declared:

“I come from a state that raises corn and cotton and cockleburs and Democrats, and frothy eloquence neither convinces nor satisfies me. I am from Missouri. You have got to show me.”

The speech is widely credited as being the origin of the sayingthat has long been Missouri’s unofficial slogan. The implication is that it takes more than fancy words from politicians to cajole Missourians. We want to see evidence. We want public accountability.

For some elected officials, that’s no longer true.

On Tuesday, the Missouri House, controlled by a veto-proof Republican majority, voted to establish a new rule that would allow elected representatives to keep their records shielded from prying eyes. This follows a November vote in the state in which 62 percent of Missourians enshrined into the state’s constitution a new provision that applies the Sunshine Law to state lawmakers. In effect, House Republicans raised their collective middle fingers and pointed them at voters.

“You want us to Show You our work?” they said. “No thank you.”

The move came on the same day that a different branch of government in Missouri stood up for the Sunshine Law, which allows citizens to hold elected officials accountable by making their work a matter of public record. The Court of Appeals, Western District, upheld a previous decision by Cole County Circuit Court Judge Patricia Joyce to fine former Cole County Prosecuting Attorney Mark Richardson for multiple violations of the Sunshine Law. That case will end up costing taxpayers $36,000 in fines and attorneys’ fees.

Richardson, who lost his re-election bid in a GOP primary last August, had been found to have “knowingly and purposefully” violated the Sunshine Law in refusing to hand over public documents sought by attorney Aaron Malin. Malin, along with David Roland of the Freedom Center of Missouri, have filed numerous similar lawsuits across the state alleging multiple violations of the Sunshine Law. They have won against prosecutors, sheriff’s departments and police departments.

In Missouri, these days, far too many public officials believe the people’s records are made to be hidden, not shared.

Just a week or so before the House decided to ignore state law and the constitution, the Department of Health and Senior Services decided, for instance, that Missourians had no right to know which individuals or businesses will be operating the nascent medical marijuana industry in Missouri. The department denied Sunshine Law requests filed by me and another Post-Dispatch reporter to see the “pre-application forms” of those people or companies who have plopped down thousands of dollars to get in line to operate what could end up being multi-million-dollar businesses, with licenses handed out by state regulators. The office of Gov. Mike Parson said it supports the decision by DHSS officials to keep taxpayers in the dark.

The Post-Dispatch has protested the decision. But it is part of a growing body of evidence that in Missouri, when residents ask their public officials to “show-me” the records, the answer is all-too-often a resounding no.

Even when the answer is yes, it often comes with a caveat.

Later this year, a Sunshine Law case against the University of Missouri is scheduled to go to trial. In that case, an animal rights group sought records related to the testing of animals, and the university’s response was to ask for $80,000.

Last year, when I wanted to see the records behind a commendation St. Louis County Police Chief Jon Belmar gave to the officers who police MetroLink, the department wanted $5,000. There are dozens of similar examples across the state.

Because the Missouri Sunshine Law sets a high bar for lawyers to win back their fees in such cases, public officials know that more often than not, the strategy of charging an exorbitant amount of money to search for records has a chilling effect on the process of obtaining them.

That leaves the public in the dark, which is what the Missouri House voted to do this week.

It’s a travesty, says lawyer Mark Pedroli of Clayton. He’s still embroiled in a Sunshine Law case of his own, seeking records (and a deposition) from former Gov. Eric Greitens about the governor’s use of the text-destroying app Confide. That lawsuit has uncovered widespread use of the app in the Greitens administration, which during its short reign became infamous for its disregard for public accountability laws.

“Missouri elected representatives are not high priests entitled to privileged communications with constituents,” Pedroli tweeted after the House’s action. “They don’t want you to see their emails/texts with their donors, maybe even dark money donors demanding favors.”

Welcome to Missouri, the State of Redaction.

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Missouri House flouts voters’ will

Originally posted by the Jefferson City News Tribune Editorial Board on January 20, 2019

The Missouri House is off to a bad start.

In its first full week of session, it wasted no time in flouting voters’ will for transparency.

In November, voters overwhelmingly approved Clean Missouri, a constitutional amendment aimed at redistricting, ethics reform and transparency.

One of its provisions requires lawmakers to follow the state’s Sunshine Law, just like other public bodies must. It clarifies legislative records, including electronic records such as email, are generally open records.

We shouldn’t even need a clarification on common sense: Government works for us and with our money. We have a right to know what its officials and employees are doing.

But the House, as reported on Wednesday, changed a rule to allow its members to keep anything private that they consider “confidential.”

Specifically, the rule change is intended to protect “caucus strategy” records and “constituent case files.”

The problem is the Sunshine Law already allows certain records to remain confidential, including matters for potential litigation, real estate purchases and hiring/firing of personnel.

“We want transparency. We want the public to know what we’re doing,” Rep. Dave Griffith said. “We want the press to know what we’re doing.”

But the House rule says just the opposite. It essentially allows its members to keep anything private they want. The Missouri House of Representatives is swapping accountability for a “trust us” pledge.

Both Griffith and Rudy Veit, Jefferson City’s two new House members, supported exempting themselves from the law and the Constitution.

Griffith said all legislators are going to err on the side of caution when looking out for constituents’ privacy concerns.

We, on the other hand, would prefer for the Sunshine Law’s exceptions to be “strictly interpreted” — which is exactly what the law says.

The Missouri House apparently thinks it’s not subject to voters’ will or the Missouri Constitution. Unfortunately, it likely will take a legal battle to attempt to undo the damage the House just did to open government.

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Lawmakers rush to undo ‘Clean Missouri’ open records reform. That’s unconstitutional.

Originally posted in the Kansas City Star on January 18, 2019

Way back in November, 62 percent of Missouri voters said yes, they do think that state lawmakers — ostensibly working on behalf of the public, after all — should be transparent.

They voted two-to-one that yes, the official records of state lawmakers should be wide open to the scrutiny of their employers, and that’s all of us.

But in Jefferson City, it’s often “opposite day.” So the Republican-controlled Missouri House put overturning the “Clean Missouri” ethics reforms on open records at the very top of their do-list.

And determined as they were, they got it done, too.

Just after getting back to town for a new legislative session, the House passed a rule — subject to the approval of no one — that says they can opt out of compliance at will and keep their records closed if they want to. Oh, and they do want to, because why should Missouri’s Sunshine Law apply to them?

It’s almost as if the vote taken 60 days ago no longer applies. Or that what voters really meant was, “Fork over those records — or not.”

Living up to a direct order from the people did not sound like fun at all, so they said representatives could withhold anything touching on partisan strategy — and unfortunately, that could be anything — or communication with constituents, again very broadly defined.

Their concern, they said, is only protecting constituent privacy. But since that’s already covered in the Sunshine Law itself, why is that necessary? At least their dishonesty is transparent.

We’re guessing that some of these same lawmakers were appalled by Hillary Clinton’s apparent attempts to get around Freedom of Information Act requests and to decide on her own which of her emails should be subject to public records requests. This is not as different as they’d like to think.

Republican House Majority Leader Rob Vescovo first proposed that correspondence with constituents and anything touching on party strategy be routinely kept confidential.

But then GOP Rep. Nick Schroer said no, let each lawmaker decide. “Each individual member, as the custodian of their own records, should have this right,” he said, and “should be able to determine what is confidential.” Which completely guts the intent of the just-passed constitutional amendment’s new open records requirement.

The rule passed on a voice vote, so individual lawmakers didn’t even have to stand up and be counted. They must still be held accountable, though.

This indifference to voters is nothing new; in the past, Missouri lawmakers have flouted the will of the people on everything from animal protection to concealed weapons.

Hollowing out a constitutional amendment is unconstitutional on its face, and courts can’t allow this arrogant action to stand.

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A bad beginning

Originally posted by the Joplin Globe on January 17, 2019

Defying the will of voters and undermining the Missouri Constitution is a bad way for lawmakers in Jefferson City to launch this session.

On Tuesday, Missouri House members gave themselves the option of keeping some emails confidential as they discussed and voted on House rules. Specifically protected are “constituent case files” and records related to “caucus strategy.”

But it was barely two months ago that Missouri voters specifically imposed transparency on lawmakers with Amendment 1 to the Missouri Constitution, and it hasn’t even been a week since those same lawmakers promised to defend that constitution, not ignore it.

State Rep. Gina Mitten, D-Richmond Heights, told lawmakers this week: “So here’s the deal, folks … basically (on Jan. 9) everybody in this room raised our hands and we swore to uphold the constitution. And whether the folks in this room like it or not, our constitution was amended in November.”

Amendment 1 was approved by a margin of nearly two to one, and it contained a number of clean government and ethics provisions, including one requiring legislators and legislative records to be subject to Missouri’s Sunshine Law. It did not give lawmakers authority to decide unilaterally what should and shouldn’t be released.

We understand and respect the needs of constituents for privacy when talking about personal matters such as benefits, and some personal information — Social Security numbers, for example — is already protected and can’t be released. It was these same constituents who said they wanted these records opened, and they said it unambiguously.

And let’s be candid — what could end up being kept from the public under the heading of “constituent case files” and “caucus strategy” is correspondence between lawmakers and their big money donors.

Mark Pedroli, an attorney who has led the campaign to expose the use by government of self-destruct apps and other technologies that wipe out government records, tweeted that Republicans “are using their ‘constituents’ as human shields to knowingly and purposefully defy the constitution. They don’t want you to see their emails/texts with their donors, maybe even dark money donors demanding favors. ‘Protecting constituents’ is a charade.”

“Amendment 1 is the Supreme law of the land, supreme to any rule or law passed by the legislature,” he wrote.

We think so too.

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