Blunt attorney wants e-mail lawsuit dismissed

Saturday, May 31, 2008 | 5:50 p.m. CDT; updated 7:15 a.m. CDT, Tuesday, July 22, 2008

BRANSON — An attorney for Republican Gov. Matt Blunt wants a judge to dismiss a lawsuit claiming he must turn over records to investigators appointed by Democratic Attorney General Jay Nixon.

The lawsuit claims Blunt or his top deputies tried to destroy the state’s backup e-mail files to avoid complying with a media Sunshine Law request. It also asks a judge to order Blunt’s administration to provide records for free to Nixon’s appointed investigators.

Blunt is represented by former Supreme Court Judge John Holstein, who provided a copy Saturday of a court brief suggesting the lawsuit should be dismissed. Holstein took issue with lawsuit’s central claim.

"The allegations made by Attorney General Jay Nixon’s operatives that the governor directed erasure of backup (e-mail) tapes is patently false," Holstein said.

But even if Blunt had done so, it would not have been illegal, Holstein added.

Holstein argues in the legal brief that backup e-mail tapes are "extra copies of documents" — and thus exempt under state law from the definition of records. Under the state’s record retention guidelines, backup tapes do not have to be kept for more than 30 days, Holstein’s brief states. So even if Blunt’s administration ordered the backup tapes to be erased after 60 days, that was not prohibited, Holstein argues.

Furthermore, Holstein said, it would not have been a violation of the Sunshine Law to put the backup e-mail tapes in line to be reused after a Sunshine Law request had been made. That requirement to preserve records applies only after a lawsuit had been filed, he said.

The Associated Press filed an open-records request Oct. 31 seeking e-mails retrieved from the state’s electronic backup files. Specifically, the AP sought e-mails sent or received by Blunt, former governor’s office attorney Scott Eckersley and several top governor’s office employees.

The Sunshine Law request was filed shortly after Eckersley went public with claims that he had been fired for raising concerns that the governor’s office was misapplying or violating the Sunshine Law and Missouri’s document-retention policies. Blunt’s office has contended Eckersley was fired for using his state computer for private work, poor job performance and various other reasons.

Blunt’s office has told the AP it would cost about $23,625 to retrieve, review and produce the e-mails the AP sought, plus additional copying fees of 10 cents per page. The AP has not paid the bill and has disputed the estimated cost.

Nixon appointed a three-person investigative team Nov. 15 to look into allegations of Sunshine Law violations in the governor’s office. Those investigators sought a variety of documents under the Sunshine Law that Blunt’s attorney said would cost nearly $541,000 to provide. Lead investigator Mel Fisher sued to get those records for free on May 5.

Holstein’s legal brief contends the attorney general’s office has no legal power to demand the governor turn over vast quantities of documents for what Holstein describes as "a fishing expedition" — and certainly not without paying research and copying fees allowed under the Sunshine Law.

It also raises some procedural issues. It contends Fisher cannot sue on behalf of Nixon, instead arguing that Nixon himself should have to be listed as the plaintiff. It also argues that Blunt and the state’s chief information officer, Dan Ross, cannot be named as defendants, because it says the custodian of electronic records actually is Commissioner of Administration Larry Schepker.

Attorney Chet Pleban, who is part of Nixon’s investigative team, said Saturday that he had not seen Holstein’s legal brief. But Pleban suggested the dismissal request should itself be dismissed.

"I would assume that this motion is just as dilatory as every other tactic that has been employed by the governor to date," Pleban said.

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