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Analysis: Blunt retaliating with records requests

Sunday, May 25, 2008 | 4:49 p.m. CDT; updated 9:27 a.m. CDT, Tuesday, July 22, 2008

JEFFERSON CITY — Under investigation for alleged Sunshine Law violations, Gov. Matt Blunt’s administration is retaliating with its own use of Missouri’s open-records law.

When the attorney general’s investigators sought records from Blunt, he responded likewise. When Blunt was sued for those records, he renewed his own Sunshine Law demands. And when a lawmaker spoke poorly of the governor, Blunt’s team quickly slapped him with an open-records request.

Blunt’s point is that others are playing politics with the Sunshine Law. To any critic who questions his Sunshine Law compliance, Blunt is essentially saying: Put your records where your mouth is.

But several Sunshine Law experts, who track open-records disputes around the nation, describe Blunt’s actions as both troubling and unusual.

“They’re responding to an investigation in the executive office of the state of Missouri by sort of using public-records laws to create their own investigative powers, and I think that’s a pretty inappropriate use of public records laws,” said Charles Davis, executive director of the National Freedom of Information Coalition, based at MU.

By issuing Sunshine Law requests to other offices, “it appears to me from this distance that he’s engaging in political retribution, and that he’s trying to punish those that are essentially trying to do their jobs,” added professor Bill Chamberlin, director of the Marion Brechner Citizen Access Project at the University of Florida.

E-mails are one of the hottest topics nationally for those who follow freedom-of-information laws. Whether e-mails must be saved and, if so, in what format and for how long — those sorts of questions and disputes are bubbling up all over the place.

“Every state is struggling with it. Very few have gotten into the pettiness that appears to have evolved in Missouri,” said Lucy Dalglish, executive director of The Reporters Committee for Freedom of the Press, based in Arlington, Va.

Missouri’s e-mail controversy began late last summer when Blunt and his staff acknowledged they routinely delete some e-mails. It heightened when Scott Eckersley, the former governor’s office attorney, publicly claimed last October that he was fired after advising colleagues they may be misapplying or violating Missouri’s record-retention requirements.

Following a confidential tip that Blunt’s administration had tried unsuccessfully to tape over the state’s backup e-mail files, Democratic Attorney General Jay Nixon appointed what he described as an independent investigative team to look into alleged Sunshine Law violations by the Republican governor’s office.

At the time, Nixon was campaigning against Blunt for the 2008 gubernatorial election. Since then, Blunt has announced he will not seek re-election. But Blunt’s exit from the race did not end the job of Nixon’s appointed investigators.

The investigators used the Sunshine Law to submit 45 requests for governor’s office records.

Blunt responded with his own Sunshine Law requests — each coming with an explanation for its issuance, but each also coming at a time that suggests retaliation for a certain action. Those include:

— After the media reported that Blunt’s office wanted to charge investigators $541,000 for the records, the governor’s office responded March 12 by issuing a 15-point Sunshine Law request for records from the attorney general’s office.

Blunt’s administration said it was concerned Nixon’s office “may have committed very serious violations of the Sunshine Law.” It cited a Sept. 24 Associated Press article in which an attorney general’s spokesman said he deletes some e-mails that he thinks are not required to be kept under the Sunshine Law.

— Nixon’s appointed investigators sued Blunt May 5, still seeking the records while raising allegations that Blunt’s administration sought to destroy the state’s backup e-mail tapes. The next day, Blunt’s office responded with a renewed Sunshine Law request for every backup e-mail tape from the attorney general’s office.

Blunt’s chief of staff, Trish Vincent, explained: “Given Attorney General Nixon’s grandstanding and legal antics on the issue of e-mail, we would assume he has retained all of his e-mail backup tapes.”

— On May 6, Democratic attorney general candidate Rep. Jeff Harris of Columbia mentioned Blunt’s alleged attempt to destroy backup e-mail files during a House budget debate. The following day, Blunt’s office responded with a Sunshine Law request seeking copies of every document created and received during the past five years by Harris and his staff.

Vincent explained that if Harris is such a strong advocate for the Sunshine Law, “he will demonstrate this commitment by providing the information we have requested.”

But there is a significant distinction between the Sunshine Law requests made by the attorney general’s investigators and those issued from the governor’s office.

The attorney general has a statutory responsibility to investigate allegations of Sunshine Law violations and the legal authority to pursue penalties. That applies even if the allegations involve a political rival.

The governor’s office has no similar duties.

“While the attorney general’s investigation is within the focus of his responsibilities, it is hard to see the governor’s attempt as anything other than political, because he has no related powers” to enforce the Sunshine Law, Chamberlin said.

Blunt spokeswoman Jessica Robinson said “it’s a double standard that is as obvious as it is disappointing” to suggest Blunt’s actions are political and not Nixon’s.

By his aggressive use of the Sunshine Law, Blunt is trying to frame the allegations and legal investigations against his office as inherently political, Davis said.

“It’s a very attractive political strategy, I guess, because it raises a lot of smoke, it creates a lot of diversion,” Davis said. But “it’s the sort of politicization of the Sunshine Law that makes me kind of nervous.”


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