Suit against Blunt over e-mail access is dismissed

Friday, July 11, 2008 | 6:00 p.m. CDT; updated 8:25 a.m. CDT, Tuesday, July 22, 2008

JEFFERSON CITY — A state trial judge dismissed a lawsuit on Friday filed against Gov. Matt Blunt over access to backup e-mail records.

But the ruling tossing out the case was put on hold for 10 days to give the special investigators seeking access to e-mails from the governor’s office an opportunity to amend their lawsuit.

The suit was filed in the Capitol’s home of Cole County by Mel Fisher, one of three investigators selected by Democratic Attorney General Jay Nixon to look into allegations that the Republican governor’s office violated the Sunshine Law by deleting e-mails. The investigation team is seeking access to copies of backup e-mail records at no cost.

Cole County Judge Richard Callahan ruled Friday that Fisher cannot sue on behalf of the attorney general and that Fisher did not show in the suit’s claims that he personally had been harmed.

Callahan suggested that Fisher explain his personal stake in the case, that Nixon join the lawsuit as a plaintiff or that the attorney general’s office ask the court to appoint a special assistant attorney general for the case.

It’s unclear which option the attorney general’s office will choose. Nixon spokesman Scott Holste said in a written statement that the office is committed to “ensuring all public documents are open and available” and pledged that the investigators will have “all the legal tools needed to accomplish this important work.”

Attorneys representing the governor urged Callahan during a two-hour hearing Thursday to dismiss the investigators’ lawsuit. Former state Supreme Court Judge John Holstein, who represents Blunt, has called the suit so flawed that he hopes it “never serves as a model for any pleading in this court or any place else.”

The main thrust of Holstein’s argument is that Fisher didn’t have the legal authority to file a lawsuit for the state attorney general. And while Missouri residents can sue over perceived state Sunshine Law violations, Blunt’s attorneys argued that the lawsuit doesn’t explain how Fisher himself is harmed.

Chet Pleban, an attorney for the investigators, said the backup records are needed to determine whether Blunt’s office violated the Sunshine Law. Pleban contends there are allegations that the governor’s office violated state open records laws and that the attorney general should have the authority to investigate.

The governor’s office praised the ruling in a written statement.

“This political lawsuit accuses the governor of actions he did not take, it accuses the governor of actions that even if true would not be a violation of the law and it accuses the governor of actions that did not occur,” spokeswoman Jessica Robinson said.

The Associated Press, the St. Louis Post-Dispatch and the Kansas City Star 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.

Callahan did not rule Friday on the media’s request to intervene in the suit and is still considering it. The news outlets’ attorney, Joe Martineau, said Thursday he’s uncertain whether the AP and two newspapers would file a separate lawsuit to pursue Sunshine Law claims if blocked from the underlying lawsuit or if the case is dismissed.

The three news outlets have 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.

Blunt’s office told the AP and the Post-Dispatch that it would cost about $23,625 to retrieve, review and produce the sought e-mails, plus 10 cents per page for copies.

Holstein has said Nixon’s investigators can receive the e-mail records if they pay $541,000 to cover the costs of retrieving the e-mails from backup files and the costs of attorneys reviewing whether some e-mails are exempt from disclosure under the Sunshine Law.

The governor’s office now is in the process of implementing an archival system that allows old e-mails to be more easily retrieved.

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