A pair of lawsuits expose a potentially massive hole in Missouri’s open records law
The state of Missouri is defending itself with an argument that could deliver "fatal blows" to the Sunshine Law: As long as officials don’t bother to keep records in the first place, they can’t be held responsible for refusing to turn them over to the public.
In 2017, in two different state government agencies, Missouri’s Sunshine Law was put to the test.
Just weeks after Josh Hawley was sworn in as attorney general that year, his staff began using private email accounts — instead of government-issued addresses that are automatically subject to the Sunshine Law — to discuss public business with out-of-state political consultants.
Later that year, nearly everyone in then-Gov. Eric Greitens’ office downloaded an app called Confide which allows people to send text messages that self-destruct. It was used by Greitens’ staff to communicate within the governor’s office as well as externally with lobbyists.
A pair of lawsuits were filed alleging those actions were attempts to subvert transparency laws and deny the public access to records. Five years on, as both lawsuits continue to plod through the court system, the state has settled on a defense that could blow a massive hole in the Sunshine Law:
As long as they don’t bother to keep records in the first place, they can’t be held responsible for refusing to turn them over to the public.
“They’re potentially two fatal blows to the Sunshine Law,” said attorney Mark Pedroli, founder of the nonprofit Sunshine and Government Accountability Project who is involved in both lawsuits.
“If the court were to rule that you can destroy records and you can hide them or conceal them off government servers,” he said, “I would say that’s as serious and significant a threat to the public’s access to government records as has ever been presented.”
Pedroli argued the Confide case last month before a panel of state appeals court judges after a circuit court judge sided with the governor’s office last year. Two weeks later, a Cole County judge heard arguments in the lawsuit against the attorney general’s office.
“It’s not disputed that the emails were related to public business,” Jason Lewis, an assistant attorney general, argued in court last month in the Hawley case. “But they are not public records. There was no retention here.”
I would say that’s as serious and significant a threat to the public’s access to government records as has ever been presented.Mark Pedroli, founder of the Sunshine and Government Accountability Project
That argument runs counter to Hawley’s rhetoric on the campaign trail in 2016, when he slammed Democratic presidential candidate Hillary Clinton for using a private server to send and receive emails as secretary of state.
It also seems to run afoul of the attorney general’s office’s own record retention policy under Hawley, which made it clear that public business conducted via private emails was still considered a public record.
“You have public officials here who pretty blatantly tried to avoid transparency and avoid accountability,” said David Roland, director of litigation at the libertarian nonprofit Freedom Center of Missouri. “There should be consequences. Severe consequences.”
But Roland fears their actions would violate the record retention law, not the Sunshine Law. And if that’s the case, Roland says he doesn’t see anything in the record retention law that would allow the court to enact any penalties or consequences.
“As much as I would like a judicial fix to this, I don’t really think a judicial fix is proper,” he said. “And it pains me to say that. But this is something that I believe has to be resolved through the legislature.”
It’s the same conclusion Cole County Court Judge Jon Beetem reached last year, when he dismissed the Confide lawsuit. Pedroli quickly appealed and awaits a ruling from the Western District Court of Appeals.
Pedroli contends the Sunshine Law does include a requirement for government agencies to keep records pertaining to public business. It always has.
“It was clear when the legislature drafted the law in the 1970s that they created a duty to the custodian of records to maintain public records, and to not destroy originals,” Pedroli said. “I just don’t think it could be any more clear.”
If the courts allow government agencies to destroy records, or move public business off government servers, Pedroli said “it’s going to create the incentive to do that.”
The Sunshine Law is already hard to enforce, Pedroli said, with few options available for citizens who feel they were illegally denied access to records besides hiring a lawyer and filing a lawsuit.
But those cases take a long time to wind through the judicial system, he said, and can be prohibitively expensive.
His lawsuit against the governor’s office over Confide has been dragging on since December 2017. And as for costs, public records show the governor’s office has spent more than $400,000 defending the case thus far.
Neither Hawley nor Greitens are even still in the same office as they were when the alleged transgressions took place — Hawley was elected to the U.S. Senate in 2018 and Greitens resigned earlier that year to settle a felony charge and avoid impeachment.
“Here’s the game the government plays,” Pedroli said. “As soon as you request a record that they don’t want you to have, they’re just gonna say no. It’ll take you years, and lots of money, to get any resolution, and by that time the elected official is probably gone. And the taxpayers get to pay the tab.”
This story was originally published on the Missouri Independent.