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Columbia Missourian

Blunt's attorneys ask judge to dismiss e-mails suit

By CHRIS BLANK/The Associated Press
July 10, 2008 | 5:28 p.m. CDT

JEFFERSON CITY — Attorneys for Gov. Matt Blunt asked a state judge Thursday to dismiss a lawsuit seeking access to backup e-mail records.

Former state Supreme Court Judge John Holstein, who is representing the governor, called the suit so flawed that he hopes it “never serves a model for any pleading in this court or anyplace else.”

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The lawsuit was filed in the Capitol’s home of Cole County by Mel Fisher, one of three investigators selected by Attorney General Jay Nixon to look into allegations that Blunt’s office violated the Sunshine Law by deleting e-mails. The investigation team seeks access to backup records of e-mails from the governor’s office in 2007.

Chet Pleban, an attorney for the investigators, said the backup records are needed to determine whether Blunt’s office violated the Sunshine Law. Pleban, who says investigators and Blunt’s attorneys are at an impasse, argues he has authority to seek the e-mails because the attorney general created the investigation team.

The Associated Press, the St. Louis Post-Dispatch and the Kansas City Star also have asked for permission to join the lawsuit to press their own separate requests for e-mail records filed under Missouri’s public records law.

The three news outlets each asked for 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 Nixon to appoint investigators to determine whether Blunt’s office violated the state Sunshine Law by deleting some e-mails.

The news outlets argue 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.

Cole County Judge Richard Callahan did not rule immediately Thursday after a roughly two-hour hearing. He said he hoped to rule next week.

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.

Attorneys for Blunt and information officer Dan Ross — who is also named in the lawsuit — oppose the media’s request to intervene in the lawsuit, calling it an attempt to “force their way into this lawsuit” so they can “sell more newspapers.”

Holstein contends that the suit filed by Nixon’s investigative team should be dismissed for several reasons.

He argues that the investigators cannot sue on behalf of the attorney general and should not have let Fisher file the suit; that Blunt and Ross shouldn’t be the defendants because Administration Commissioner Larry Schepker is custodian for electronic records; and that those requesting documents should have to pay “research” costs, including review by attorneys to determine if they must be disclosed.

Holstein said if Nixon’s investigators are willing to pay, the governor’s office “will start producing them tomorrow, but he has never offered one red cent.”

Nixon’s investigators have been told it would cost nearly $541,000 to obtain all the e-mails they had requested from the backup system. Blunt’s office told the AP and the Post-Dispatch it would cost about $23,625 to retrieve, review and produce the e-mails they sought, plus copying fees of 10 cents per page.

The media companies 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.

Lowell Pearson, the general counsel for Blunt’s office, said Thursday after the court hearing that if those requesting the documents “pay the deposit, we stand ready to start producing their documents right now.” Pearson said it’s reasonable to expect those requesting information to pay for it.

An attorney for the news outlets, Joe Martineau, said he’s uncertain whether the AP and the two newspapers would file a separate lawsuit to pursue Sunshine Law claims if blocked from the underlying lawsuit or if the case is dismissed.