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Loophole means Missouri Attorney General rarely enforces public records law on state agencies

 Eric Schmitt, Missouri's attorney general, speaks to the media in November outside of the Thomas F. Eagleton U.S. Courthouse in St. Louis.
Brian Munoz
St. Louis Public Radio
Eric Schmitt, Missouri's attorney general, speaks to the media in November outside of the Thomas F. Eagleton U.S. Courthouse in St. Louis.

The Missouri Attorney General's office often refuses to enforce a law designed to ensure government transparency because it considers state agencies like the Department of Health and Senior Services "a client." That leaves complainants with few options to obtain public records.

When Missouri’s health department refused to turn over certain documents to ProPublica reporter Pamela Colloff in October 2020, she did what the attorney general’s office directs anyone to do if they believe a government agency is illegally withholding public records.

She filed a Sunshine Law complaint with Missouri Attorney General Eric Schmitt, whose office enforces the law designed to ensure government transparency.

Two-and-a-half months later, she received a three-sentence response dismissing her complaint because the attorney general’s office considered the Department of Health and Senior Services “a client.”

“Absolutely nothing… was ever disclosed,” Colloff said of the records she sought.

The letter made no mention of the weeks of discussions, conducted via email and over the phone between the attorney general’s office and the health department, about the complaint and the agency’s refusal to turn over records.

The attorney general’s office initially thought DHSS should hand them over, but ultimately ended up offering legal advice on how the department could shore up a potential loophole in the regulation it had relied on that could result in a lawsuit.

Colloff’s experience wasn’t isolated.

Thousands of pages of emails, internal legal memos and letters obtained by The Independent through an open records request show that when a member of the public files a Sunshine Law complaint against a state agency, the attorney general’s office assumes the role of legal counsel for the agency the complaint is lodged against.

That means complainants who believe state government entities are breaking the Sunshine Law are left with few options, with the attorney general’s office instructing them to “contact a private attorney” if they wish to pursue the matter further.

“What is crucial for the citizens of the state and for the policies expressed in the Sunshine Law, is that the attorney general’s office is not putting a thumb on the side of the government in these cases,” said Dave Roland, the director of litigation for the Freedom Center of Missouri, a libertarian nonprofit that advocates for government transparency. “And unfortunately, I think that that’s kind of what we’re seeing, especially when we’re talking about state agencies.”

The loophole created by this dynamic isn’t unique to Schmitt, who took office in 2019. It’s an issue that’s persisted for years, with attorneys general of both parties wrestling with a conflict between a duty to enforce the Sunshine Law and a responsibility to defend state agencies.

“I don’t think anyone should be under any illusion that the attorney general is going to enforce the Sunshine Law against any state agency. They’re just basically never going to do that,” said Andy Hirth, who served as deputy general counsel in the attorney general’s office under Democrat Chris Koster. “They’re always going to defend the state agency, because that is their primary responsibility.”

 The Jan. 11, 2021 closure letter sent to ProPublica reporter Pamela Colloff.
Missouri Independent
The Jan. 11, 2021 closure letter sent to ProPublica reporter Pamela Colloff.

Chris Nuelle, a spokesman for Schmitt, defended the office’s record on the Sunshine Law in a statement Wednesday by pointing to nine lawsuits the attorney general’s office filed since 2019 over alleged open records law violations. Two of the lawsuits were filed this week, and all but one were filed against local government entities. The other involved a nonprofit.

Nuelle did not provide any examples of instances in which the office has pursued enforcement action against state entities that it received Sunshine Law complaints regarding.

“We have worked with client agencies to address potential violations of the Sunshine Law to ensure future compliance and avoid litigation, which has undoubtedly saved Missouri taxpayers thousands and thousands of dollars,” Nuelle said, “all while ensuring that the Sunshine Law is being followed correctly.”

But critics note that, while enforcement of open records laws against state agencies by the attorney general’s office is rare, it’s not unheard of — most notably when Schmitt’s predecessor, Republican Josh Hawley, launched a pair of Sunshine Law investigations into former Gov. Eric Greitens.

Even Schmitt got involved in a Sunshine Law dispute with the Missouri Veterans Commission in 2020, demanding the agency turn over a report it had withheld from the public.

Elad Gross, a former Democratic candidate for attorney general who successfully sued Gov. Mike Parson over Sunshine Law violations, said he believes Schmitt’s enforcement of Missouri’s open records law, “is very selective and appears not to be made in the best interest of transparency, accountability, and participation by Missourians.”

“Right now the attorney general is choosing to represent the government, which has an interest in closing records,” Gross said, “versus the people who have an interest in seeing them and being able to see what their government is doing.”

Treating agencies as clients

The attorney general’s office originally agreed with Colloff that she should get access to divorce records of a couple that had both died years before.

James Klahr, an assistant attorney general, initially wrote to attorney general’s office staff in November 2020 that he thought DHSS’ “better legal position” would be to release the records to Colloff. At the very least, DHSS could provide the name of the county where she could request records at a local level, Klahr later suggested.

But after discussions with DHSS’ attorneys, the office ultimately issued a four-page letter to the agency, advising it to update the regulation it relied on to withhold the records.

The regulation, “creates potential confusion and may result in litigation to the extent there is uncertainty about whether news reporters are able to obtain access to vital records and, if they are, under what circumstances,” the January 2021 letter read.

Colloff said the info she sought was ultimately never provided. The attorney general’s efforts to withhold the records was an “enormous waste of time and money for Missouri taxpayers,” she said.

Steve Garrison, a former Missouri School of Journalism graduate student who assisted Colloff in her research on the Sunshine Law request, said he used to think there was nothing to lose in filing a Sunshine Law complaint. But seeing the attorney general’s legal advice to DHSS makes him think otherwise.

“If they’re just going to use the information they get from these complaints to then try to close loopholes,” Garrison said, “or try to make it harder for people to get public information that they have a right to, then it’s not worth it.”

Roland agreed, saying the complaint process, “allows the attorney general’s office and the state agency to hone their reasons for withholding documents.”

Hirth said it would be unlikely for the attorney general’s office to inform the complainant they were right and to force the client agency to make changes. It’s in the attorney general’s office’s interest to ensure that if it believes the agency is in the wrong, “to get the client to fix the problem and not get sued,” he said.

A review of Sunshine Law complaints since Schmitt took office, as well as internal emails discussing those complaints, reveals a similar pattern to Colloff’s case.

In a complaint filed by then-St. Louis Post-Dispatch reporter Jeremy Kohler against the Department of Natural Resources, the attorney general’s office similarly provided the agency with its legal analysis.

Assistant Attorney General Brian Earll wrote in a November 2020 email to Jacob Westen, DNR’s then-deputy general counsel, that under a federal statute he didn’t find anything “which affirmatively requires withholding the data” Kohler requested.

But the law wasn’t very specific on the entities the request was regarding, Earll wrote, “and thus, closure is more than likely colorable under these and other privacy issues.”

Close to a month later, Kohler was sent a similar six-sentence letter as Colloff closing his complaint and citing the same justification — that DNR was considered a client. Kohler declined to comment on the records.

In various emails, attorney general office staff refer to the letter citing the client justification as the office’s “normal practice” and “the standard letter” it sends.

In a May 2019 email agreeing with the Department of Corrections’ justification for withholding incident reports, Justin Smith, a deputy attorney general for special litigation, recommended that the Sunshine Law complaint be closed.

“Since the Department is a client, typically we would send only a short letter closing the complaint,” Smith wrote.

But because the complaint had been filed by Gary Castor, The Jefferson City News Tribune’s managing editor, Smith said he drafted a more detailed letter.

“Although we likely still will get an unfavorable story,” Smith wrote, “hopefully it will not be able to plausibly complain that we did not provide sufficient reasoning for our decision.”

In discussing a July 2020 complaint against the Missouri Department of Transportation, attorneys were unsure if the agency would be a client of the attorney general’s office. But Cheryl Schuetze, then-chief counsel for the office’s governmental affairs section, wrote in an August 2020 email: “We’re going to treat them as one until I find out otherwise.”

A gap in enforcement

Prompted by a January 2020 Sunshine Law complaint against DHSS regarding medical marijuana licenses, the attorney general’s office briefly discussed how to handle complaints against state agencies that attorneys represent or may have represented in the past.

To avoid “potential conflict of interest issues,” Sara Rittman, an assistant attorney general, recommended complaints against state agencies be assigned through the normal process at managers meetings.

“That will enable us to make sure they aren’t handled by an attorney with a conflict and ethical screens can be established, when needed,” Rittman wrote.

An October 2019 memo detailing the reasons why a Sunshine Law complaint filed by Gross would be closed, touched on the legal bind the office could be put in. It noted that Gross had filed a lawsuit against the governor’s office over the allegations in the complaint, and that the attorney general’s office would be representing Parson’s office.

“Due to likely conflicts of interest with the AGO representing the Governor’s Office in litigation while simultaneously investigating the Governor’s Office for identical issues in the Sunshine Law complaint,” the attorney general’s office decided not to proceed further with the complaint.

Gross said he never received a response to his 2018 Sunshine Law complaint. The lawsuit eventually reached the Missouri Supreme Court, who unanimously ruled in Gross’ favor and said that government agencies can’t charge for time attorneys spend reviewing public records.

“I had the training to take this case and the credit card limit to accept those costs while I was doing it, but most folks don’t,” Gross said. “And this is certainly shutting out most people from their own government, which I think is a terrible, terrible policy decision.”

Hawley, who was replaced by Schmitt after winning a seat in the U.S. Senate in 2018, came to a different conclusion than his successor when alleged Sunshine Law violations were uncovered in the governor’s office.

In 2017, Hawley initially declined to take action on Greitens’ use of a messaging app that automatically erased messages and his denial of records related to his office’s social media accounts.

Hawley raised a similar justification for why he couldn’t investigate, pointing to a 2002 Missouri Supreme Court ruling regarding a lawsuit in which the attorney general’s office represented both the plaintiff and defendant. The Missouri Supreme Court ruled that the attorney general’s office “must choose a side.”

But Hawley later reversed course and launched investigations into both issues.

In a detailed December 2017 letter explaining the legal considerations that went into his decision, Hawley explained that the conflict of interest the office faces hasn’t been interpreted consistently.

When former Attorney General Jay Nixon appointed outside investigators to examine alleged Sunshine Law violations committed by then-Gov. Matt Blunt, a Cole County judge dismissed the lawsuit and found the investigators lacked standing to sue on behalf of the attorney general’s office.

The judge “directed Nixon either to bring an enforcement action by the Attorney General, or concede that he had a conflict of interest,” Hawley wrote, and eventually the court appointed independent special counsel.

But on the other hand, Hawley wrote other cases “suggest there is no true conflict of interest in cases like this one,” noting that prior attorneys general have sued other statewide officials with no ethical concerns raised.

Hawley ultimately determined that there was not a conflict that would prevent a Sunshine Law investigation into a state agency and that “the attorney general’s clients are first and foremost the citizens of the state.”

Schmitt also previously chose to weigh in on Sunshine Law issues regarding state entities, like in December 2020 when he sent a letter to the Missouri Veterans Commission directing its chairman to immediately release a 415-page report it argued was exempt from disclosure under the Sunshine Law and when he told Parson’s office in 2019 it should not rely on the First Amendment for blanket redactions.

Potential solutions

In 2018, amid Hawley’s Sunshine Law investigations into Greitens, the attorney general’s office supported a bill that would have given the office subpoena power in open records investigations, increased fines for violating the Sunshine Law and established a transparency division within the office to address the conflict of interest issues.

The bill was seen as a way to settle the question of whether the attorney general could enforce the Sunshine Law in state agencies once and for all.

The bill passed the House with only one vote in opposition, but was never heard in committee in the Senate.

Transparency advocates argue it’s still needed.

“This is a law that there is no one really charged to enforce that has an unconflicted ability to do that,” said Jean Maneke, the Missouri Press Association’s attorney who had worked with Hawley’s office on the 2018 bill.

Other states, like Illinois and Iowa, have independent agencies that handle open records disputes and issue formal opinions. Establishing a similar office in Missouri would likely require lawmakers to appropriate funding and set state statutes governing the office.

“Short of something like that, if it’s always left in the (attorney general’s) office, this is always going to be the same problem,” Hirth said.

Without a fix to close the loophole in enforcement, Missourians will continue to have few options to remedy potential violations state agencies have committed.

“We cannot be a self-governing society without having a clear idea of what the government’s doing in the people’s name and with the people’s taxpayer dollars,” Roland said, later adding: “Right now, our system is making it really difficult for citizens to hold their government accountable.”

This story was originally published on the Missouri Independent.

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