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KC Star, Post-Dispatch and AP want to join e-mail lawsuit against Blunt

Wednesday, June 11, 2008 | 6:46 p.m. CDT; updated 7:17 a.m. CDT, Tuesday, July 22, 2008

The Associated Press

JEFFERSON CITY — Three media outlets on Wednesday sought to join a government lawsuit to get copies of e-mails from Gov. Matt Blunt’s office that the news agencies had requested under the state Sunshine Law.

The Associated Press, St. Louis Post-Dispatch and Kansas City Star are asking a state court to declare e-mails pertaining to public policy are public records and costs for retrieving deleted records from backup files cannot be assessed and to direct the governor’s office to supply copies of the requested e-mails.

The AP, St. Louis Post-Dispatch and Kansas City Star each requested e-mails from the governor’s office during the second half of 2007. Revelations stemming from those requests that the governor’s office had not maintained e-mails triggered Attorney General Jay Nixon to appoint investigators to determine whether Blunt’s office violated state open-records laws by deleting some e-mails.

In the request to join the suit, the media outlets claim Blunt’s office violated the Sunshine Law by deleting the original e-mails, charging unauthorized fees for retrieving backup copies and wrongly stating that some of the requested documents are exempt from disclosure.

Last month, lead investigator Mel Fisher filed a lawsuit in the Capitol’s home of Cole County that seeks an injunction ordering Blunt’s office to turn over backup e-mail tapes to the investigators and to the court. It also asks the court to direct the governor’s office to comply — at no cost — with the investigators’ Sunshine Law request for e-mail records.

That suit accuses Blunt or a deputy of ordering the destruction of backup e-mail tapes to avoid an AP open-records request.

The outlets state in court documents filed Wednesday that they need to join the suit because it’s the only way to guarantee access to the public documents.

As an example, the news outlets point out that Nixon isn’t running for re-election in November and that the new attorney general could choose to drop the lawsuit. If the suit is dropped, that could allow for the reusing of e-mail backup tapes, which currently must be preserved during litigation. That, the media outlets argue in the motion, “would result in the effective purging of the e-mails” that they requested from the governor’s office under the Sunshine Law.

And Chet Pleban, one of Nixon’s investigators, said Wednesday that it’s possible that some records to which they are entitled aren’t necessarily public documents that would have to be disclosed under the Sunshine Law.

Blunt is represented by former Supreme Court Judge John Holstein, who has asked a state judge to dismiss the investigators’ lawsuit. Holstein has said Blunt never directed the backup e-mail tapes to be deleted.

In court documents, Holstein argues that the backup records are “extra copies” and thus exempt under state law from the definition of records and could be erased even after a Sunshine Law request for information contained on them.

Holstein said Wednesday that he doesn’t see how the media outlets can link with requests from Nixon’s investigators for documents.

“I have no clue what their basis for intervention is,” he said.

Holstein also contends that Fisher cannot sue on Nixon’s behalf and that Commissioner of Administration Larry Schepker should be listed as the defendant and not Blunt and state chief information officer Dan Ross because Schepker is the custodian of electronic records.

Pleban said the involvement of the three media outlets could help the investigators.

“We welcome those parties with open arms, and it certainly highlights the significance of our lawsuit,” Pleban said. “Obviously we’ve said from the outset that this matter is of grave public importance. Those documents need to be reviewed and examined — there needs to be a checks and balance situation.”

A spokeswoman for Blunt, who isn’t seeking re-election, said Blunt’s office has implemented an e-mail retention policy.

“We are extremely disappointed that in the middle of a political campaign the state’s two most liberal newspapers, the St. Louis Post-Dispatch and the Kansas City Star, would join forces with the campaign of Jay Nixon,” said spokeswoman Jessica Robinson.

Nixon, a Democrat, is running for governor.

The AP filed an open-records request Oct. 31 seeking e-mails retrieved from the state’s electronic backup files. That came after former Blunt staff attorney Scott Eckersley said he was fired for pointing out that the e-mail deletions by Blunt’s office violated Missouri’s Sunshine Law and document retention policies.

Blunt’s office has said Eckersley was fired for poor job performance and for using state computers to do private work.

According to the original lawsuit, the state’s Office of Administration set aside backup e-mail tapes so they wouldn’t be taped over. Later, Blunt or one of his top three deputies urged the files be taped over. But state workers refused, and the next day Nixon’s office received a tip that Blunt’s office had tried to have backup e-mail files destroyed.

Blunt’s office said it would cost about $23,625 to retrieve, review and produce the e-mails the AP and Post-Dispatch sought, plus additional copying fees of 10 cents per page.

An attorney for Blunt told Nixon’s investigators it would cost nearly $541,000 to obtain all the e-mails they had requested from the backup system.

The media outlets contend Blunt’s office is wrongly charging for attorneys to review what documents must be turned over under the Sunshine Law and for retrieving records that it was supposed to keep.

“Because of the governor’s haphazard retention of e-mails, the only practical way which exists now to obtain e-mails that are public records under the Sunshine Law is to engage in a costly ‘restore’ process from these backup tapes, the costs of which the governor wants to foist on the requesters,” Wednesday’s court filing states.


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