Nixon’s office wants special attorney general appointed in e-mail lawsuit

Friday, July 18, 2008 | 3:58 p.m. CDT; updated 10:47 a.m. CDT, Tuesday, July 22, 2008

JEFFERSON CITY — The attorney general’s office on Friday asked a state judge to name a special assistant attorney general to pursue a lawsuit against Gov. Matt Blunt over access to e-mail records.

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 state open records law by deleting e-mails. The investigation team is seeking access to copies of backup e-mail records at no cost.

Last week, Cole County Judge Richard Callahan ruled that Fisher cannot sue on behalf of the attorney general’s office. Callahan dismissed the lawsuit but delayed his order for 10 days to allow the attorney general’s office to decide what to do next.

Callahan, in his ruling on July 11, suggested that Nixon be made a party in the lawsuit, that the attorney general’s office request the court appoint a special assistant attorney general to pursue the case or that Fisher explain how he was harmed.

Deputy Attorney General Karen Mitchell, in a letter Friday to Callahan, requested that an attorney be selected to continue with the suit and that the trial judge allow more time to amend the lawsuit before the case is dismissed.

A spokeswoman for Blunt said the lawsuit accuses the governor of actions he did not take and that would not be illegal.

“The fact that neither Jay Nixon nor his political appointee Mr. Fisher are willing to file anything themselves suggests they understand the likelihood of losing a second time,” Blunt spokeswoman Jessica Robinson said.

Attorneys representing the governor have argued that there are many problems with the original lawsuit, including that Fisher was trying to sue on behalf of the attorney general.

Former state Supreme Court Judge John Holstein, who represents Blunt, contends the attorney general’s office has no legal power to demand the governor turn over vast quantities of documents without paying research and copying fees allowed under the Sunshine Law.

Blunt’s office and Holstein have said that Nixon’s investigators could begin receiving e-mail records if they pay $541,000 to cover the costs of retrieving the e-mails from backup files and for attorneys to determine which e-mails don’t have to be disclosed under the Sunshine Law.

Blunt’s office has told The Associated Press and the St. Louis Post-Dispatch that it would cost about $23,625 to retrieve, review and produce sought e-mails requested under the Sunshine Law, plus 10 cents per page for copies.

The AP, Post-Dispatch and Kansas City Star have asked for permission to join the investigators’ lawsuit to press separate requests for e-mail records filed under Missouri’s public records law.

Callahan has not ruled on the media’s request to intervene in the suit and is still considering it.

The attorney general’s office selected investigators to look into Blunt’s e-mail retention policies after former governor’s office attorney Scott Eckersley claimed he was fired for raising concerns about e-mail deletions. Blunt’s office has denied that assertion, instead saying Eckersley was fired for doing private work with state resources, among other things.

The governor’s office now is in the process of implementing an archival system that allows old e-mails to be more easily retrieved. E-mails from the governor’s office and several other executive departments are retained on a backup system overseen by the Office of Administration. The attorney general’s office says its e-mails are retained on a separate backup system.

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