Missouri legislators argue limitation of Sunshine Law

Sunday, January 25, 2009 | 4:22 p.m. CST; updated 9:57 p.m. CST, Sunday, January 25, 2009

JEFFERSON CITY — They require others to comply with open-government laws. But Missouri legislators have exempted themselves from having to turn over documents they prefer to keep secret.

The Missouri House and Senate have interpreted the Sunshine Law not to apply to individual lawmakers — even though it does apply to the legislature as a whole, legislative committees and legislative staff.

Whether that complies with the spirit of the Sunshine Law is questionable. Whether that is the correct interpretation of the law also is a matter of some dispute.

Missouri's open-records-and-meetings law applies to any "public governmental body." Included in that definition are legislative entities created by the Constitution, state statutes or ordinances of political subdivision such as cities and school districts.

The General Assembly is a legislative body created by the constitution. But the 197 lawmakers comprising the legislature are not each "public governmental bodies" themselves, according the interpretation followed by the lawmakers.

House General Counsel Don Lograsso — a former lawmaker himself — points to a July 2003 court decision involving the St. Louis school board. A state appeals court panel said the school board president as an individual was not a "public governmental body" and thus was not individually subject to the Sunshine Law.

House Budget Committee Chairman Allen Icet followed that same logic when he recently declined to provide documents sought by The Associated Press.

In December, Icet, R-Wildwood, and Senate Appropriations Committee Chairman Gary Nodler, R-Joplin, sent a joint letter to state agencies asking them to come up with scenarios for handling potential 15, 20 and 25 percent budget cuts. The letter directed agencies to provide their responses to the Senate and House appropriations staffs.

The Department of Higher Education made public the responses of Missouri's various colleges and universities, which warned of employee layoffs, spiking tuition and reduced class sizes if the cuts came to fruition.

When asked to provide reports prepared by other state agencies, Icet initially declined to provide the budget-cutting reports. He said they were in his possession — not that of the committee to whom he had asked they be sent — and that he was not subject to the Sunshine Law as an individual lawmaker. He further explained the reports contained information that, if made public, could cause unnecessary alarm among state workers or Missouri residents.

After repeated requests from the AP, Icet ultimately said Thursday he would provide the documents, and Lograsso said they should be available by Tuesday. But the AP obtained them first from the Senate Appropriations Committee, after Nodler transferred his copies of the records back to his committee.

A few of the facts from the documents:

  • Budget cuts of 15-25 percent could cause the Department of Corrections to release between 4,076 and 7,933 inmates, close six to 10 prisons and layoff up to 2,500 employees.
  • A 15 percent cut could require the Department of Mental Health to release more than 160 sexually violent predators from state facilities, instead relying on GPS tracking devices to monitor them in communities.
  • A 20-25 percent cut in the Department of Health and Senior Services could prevent between 54 and 392 people with HIV from receiving medications, increasing their risk of death or of infecting others.

Icet and Nodler stressed that cuts of 15 to 25 percent probably won't be necessary. The information was intended as a guide in a worst-case scenario.

But the fact that the records contain potentially negative information is not a legal reason to keep them closed.

Many states do not apply their public-records laws to legislators, said Charles Davis, executive director of the National Freedom of Information Coalition, based at MU.

But "to me, it is the height of hypocrisy to have the entire state government bureaucracy and local governments all the way down to city councils subject to a law that you absolutely, topically exempt yourself from," Davis said.

Some lawmakers have sought a more definitive answer on the legality of closing their records.

Last year, then-Sen. John Loudon, R-Chesterfield, asked then-Attorney General Jay Nixon for an official opinion on whether correspondence between lawmakers and governmental agencies — saved in an individual lawmaker's office — is considered a public record under the Sunshine Law. The question languished for months, but Nixon never answered it before becoming governor Jan. 12.

"There's not a clear answer to that question," said Jean Maneke, a Kansas City attorney who specializes in Sunshine Law cases. "No court has ever addressed it."

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