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UPDATE: Fines sought against Gov. Blunt for Sunshine Law violation

Thursday, December 4, 2008 | 2:35 p.m. CST

JEFFERSON CITY — Special court-appointed investigators are seeking fines against Gov. Matt Blunt, alleging he “knowingly and purposely” violated Missouri’s public-records law by denying access to e-mails.

The request for penalties are outlined in a revised lawsuit against Blunt, his former chief of staff and others. A bipartisan pair of assistant attorneys general asked the court Wednesday for permission to file the amended lawsuit, which was made public Thursday.

The lawsuit raises the strongest assertions yet in a yearlong e-mail deletion controversy surrounding the Republican governor, who chose not to seek re-election and has barely a month left in his term.

It alleges Blunt and his attorneys have denied access to e-mails requested by the investigators by raising objections, refusing to produce some documents and demanding “excessive” amounts of money for them.

“As a result, the office of governor and the governor have knowingly and purposely violated the Sunshine Law,” the lawsuit says while asking that fines and penalties be levied against the governor’s office.

The lawsuit also claims knowing or purposeful Sunshine Law violations by Blunt’s former chief of staff, Ed Martin, for asserting he had no e-mails sought under a media Sunshine Law request made in August 2007. Martin’s response indicates he had deleted the e-mails, the lawsuit says.

“In fact, e-mails were available from back-up tapes,” the lawsuit states, but the governor’s office did not ask state computer technicians to search the back-up e-mail files.

Missouri law allows fines of up to $1,000 against public officials and governmental bodies found by a court to have “knowingly” violated the Sunshine Law. Fines of up to $5,000 are allowed for those found to have “purposely” violated the open-records law.

Asked Thursday if his office willfully violated the Sunshine Law, Blunt responded: “I think there is plenty of documents out there to indicate that we didn’t. All of the work so far early in the case has indicated that that clearly was not the case.”

Martin did not immediately respond to requests for comment Thursday.

Blunt claimed the investigators were “struggling to come up with sort of a coherent case,” evidenced by their decision to add Martin as a defendant while dismissing three other officials. Those dismissed were Blunt’s administration commissioner Larry Schepker, former deputy administration commissioner Rich AuBuchon and state computer chief Dan Ross.

Blunt’s attorneys also have asked the court to dismiss the governor as a defendant while rebuffing deposition requests from the court-appointed attorneys, former Democratic Lt. Gov. Joe Maxwell and Republican attorney Louis Leonatti.

The investigators are seeking to take Blunt’s deposition Dec. 11 in Jefferson City.

The revised lawsuit claims Blunt or those acting on his behalf violated the Sunshine Law in numerous ways:

  • Failing to adopt appropriate policies to retain public records, including e-mails.
  • Attempting to compel backup e-mail tapes to be placed into the rotation for reuse, which would have caused the e-mails to be destroyed, after receiving a Sunshine Law request Oct. 31, 2007, from The Associated Press.
  • Attempting to charge investigators for the restoration and review of the records contained on the backup e-mail tapes.

Depositions taken in the case have produced conflicting testimony about whether computer technicians were asked to destroy the backup e-mail files. Blunt’s legal advisers have denied making such orders, but one employee feared he could be fired for refusing to go along with what he interpreted as a direction to destroy the e-mail tapes. Ultimately the backup tapes were preserved.

The controversy over e-mail deletions in Blunt’s office began in September 2007, when the Springfield News-Leader said it had requested e-mail communications between the governor’s office and anti-abortion interests but was told the e-mails didn’t exist.

As an explanation, a Blunt spokesman said governor’s office employees regularly deleted e-mails and denied they needed to be retained as public records — an assertion from which the office later backed off. Blunt also said publicly that he routinely deleted e-mails.

In fact, e-mails are public records under state law. Depending on the topic, some can be deleted soon after receipt, others must be kept for three years and some must be saved for the state archives.

About the same time the media were questioning Blunt’s e-mail policies, records show that Scott Eckersley, then a legal counsel to the governor, was assigned to update the office’s Sunshine Law policy. On Sept. 14, 2007, he sent an e-mail to several top Blunt officials recommending they respond to the media by acknowledging that e-mails can be public records that must be retained.

Eckersley was fired two weeks later. He has filed a wrongful termination and defamation lawsuit. Blunt officials say he was fired for justifiable reasons unrelated to e-mails, including for doing private business work with state resources.

Several media outlets, including The Associated Press, joined in the separate lawsuit brought against Blunt by the special assistant attorneys general after initially being told thousands of old e-mails they sought would cost more than $23,000. The documents ultimately were provided for free to the media under a legal settlement.

The court-appointed attorneys are seeking a broader range of e-mails and say they still have not received many of them.


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