If you want to request a Missouri state lawmaker’s emails, whether you’ll get them will depend on whom you ask.

That’s because some Missouri legislators have long-maintained that as individuals they are exempt from the state’s open-records law, known as the Sunshine Law. But a constitutional amendment on November’s ballot hopes to make lawmaker’s adherence with the law a requirement rather than a choice.

Amendment 1, more commonly known as “Clean Missouri,” would institute ethics reform across the legislature, including requiring legislative records to be made public.

While most of the spotlight has been placed on the proposal’s effort to overhaul how districts are drawn and its fight to remain on the ballot, updating the Sunshine Law is an important tenant of the amendment, said Benjamin Singer, communications director for Clean Missouri.

“Legislators have tried to evade public scrutiny and avoid transparency, but it’s our government, and the people of Missouri deserve to know what their representatives are doing,” Singer said.

Critics of the proposal believe that shining sunlight onto lawmakers’ office emails could invade constituents’ privacy.

Even one instance “of information getting out there and harming a constituent rather than helping them — then that’s one time too many,” Rep. Kathie Conway, R-St. Charles, said.

But it’s unclear if Missourians would have a means of recourse through the attorney general’s office — the entity tasked with enforcing the Sunshine Law — if Clean Missouri passes.

Varying interpretations

Introduced in 1973, Missouri’s Sunshine Law allows the public to request records from any “public governmental body,” according to the attorney general’s website.

Missouri lawmakers have touted their willingness to comply but in practice have often asserted an exemption. In 2016, The Associated Press found that while Senate President Pro Tem Ron Richard said he believed senators’ emails and schedules were public records, he denied the AP’s records request for his.

Lawmakers have justified their interpretation of the Sunshine Law by arguing that the records of the House and Senate bodies are subject to the law but not those of individual lawmakers. Two court rulings — from 1996 and 2003 — in which individual school board members were found exempt from the Sunshine Law are often cited as evidence.

Senate Administrator Patrick Baker said his office handles Sunshine Law requests submitted to the Senate. On the House side, the chief clerk of the House fulfills requests, House General Counsel David Welch said.

Lawmakers don’t always deny requests for records, but the current interpretation of the law creates uncertainty. For example, Welch said that if a request was submitted to the chief clerk for a representative’s expense accounts, that could be fulfilled because it’s a record that the House as a body maintains.

“The member turns it into the House, so the House has those records,” Welch said.

However, requests for a lawmaker’s emails — which Welch said the chief clerk doesn’t currently have access to — can be denied if the lawmaker chooses.

Former Republican State Auditor Thomas Schweich found in a March 2013 audit of the Senate that the law was “ambiguous.” Schweich encouraged the Senate to develop an email retention policy and to amend the Sunshine Law to apply to individual senators while allowing for necessary exceptions.

“It is a double standard for the legislature to impose additional requirements on other public governmental bodies while enjoying a blanket exemption from the Sunshine Law,” the report said.

In response, the Senate said it would consider an email retention policy. Democratic State Auditor Nicole Galloway found similar issues with the Sunshine Law in the House and Senate in 2016 audits.

Jean Maneke, the Missouri Press Association’s attorney, who deals regularly with the Sunshine Law, said lawmakers’ frequent use of computers connected to state servers warrants their openness.

“I am at a total loss as to how legislators can say those records that are retained by a public governmental body are not public record. If they are using their computer to draft documents ... and they are saving them to a server that’s a ‘house.mo.gov’ server, I think those records are public records,” Maneke said.

Rep. Mark Ellebracht, D-Liberty, who sponsored legislation last session that would update the Sunshine Law to address the retention of electronic records and deem an agency or official’s personal social media pages as public records, said it’s necessary to update the law and give constituents a means to request information from their lawmakers.

“We have to ... know that there’s a clear set of rules and a structure about what we can do with social media and what we can’t do with social media, what we can do with electronic records and what we can’t do with electronic records,” Ellebracht said. “Because right now everybody is operating in the dark.”

Currently, the House and the Senate may adopt rules that keep certain proceedings closed if they deem necessary, Welch said. He pointed to the decision by the House committee tasked with investigating allegations surrounding former Gov. Eric Greitens to hold proceedings behind closed doors last spring.

“There may be some exceptions that negotiations need to be done in private, but at the conclusion of those negotiations, all of the records inside of that should be open for investigation or for review,” Rep. Deb Lavender, D-Kirkwood, said. “In a democracy, I don’t think there should be anything that we actively get to hide from our constituents.”

But some, like Conway, view the issue as one of protecting constituents. Conway said her office has never refused to turn records over but worries about constituents’ personal details being made public if emails were required to be disclosed.

“That’s just an excuse,” Singer said. “Part of Sunshine Law includes redacting sensitive personal details, and that is the law that the legislature already requires other parts of Missouri government to follow.”

Conway questioned whether lawmakers being subject to the Sunshine Law is the real issue.

“I think it might be a solution in search of a problem,” Conway said of the proposal’s Sunshine Law tenant. “I think that it’s being used as pretty wrapping paper and bows for one of the most notorious redistricting schemes I’ve ever seen in my 50 years of being involved in politics.”

What will change

If implemented, the amendment would designate individual lawmakers and their staff as responsible for records requests directed to them. Welch said he envisions lawmakers and their aides would need training on the Sunshine Law but that logistics and policies would have to be determined.

“I don’t think it’s so cumbersome of a process that each office won’t be able to comply,” Baker said.

It is unknown how Clean Missouri’s proposal would affect the attorney general’s ability to investigate Sunshine Law complaints against individual lawmakers. The attorney general’s office has long maintained that as the state’s lawyer, it cannot investigate the same state entities that it is sometimes required to defend.

When asked whether state lawmakers would fall into this same legal gray area, Mary Compton, Attorney General Josh Hawley’s director of communications, said in an email, “Our Office is not in the position to speculate on hypothetical future investigations.”

The issue arose last year when Hawley initially said his office could not pursue investigations into complaints that Greitens’ office wrongly denied records requests or The Kansas City Star’s discovery that his office used Confide, an app that automatically deletes messages after they’re read. Hawley’s office later changed its stance.

Compton reiterated that the issue is one lawmakers need to address through legislation. However, lawmakers disagree with Hawley’s interpretation of the attorney general’s ability to enforce the Sunshine Law.

“I’m afraid I don’t see any gray area,” Lavender said.

It’s unclear how state lawmakers would be treated in a similar situation under Clean Missouri’s constitutional amendment.

“I would be in favor,” Conway said of lawmakers being subject to investigation. “Nobody’s above the law. And if there’s a complaint or a problem with anyone, I think it needs to be looked into. Who the right person for that would be? I’m not entirely sure. That would take a lot of thought.”

Despite potential gray areas in the law’s enforcement, Singer said it would still be a step toward more transparency.

“Regardless of what the attorney general does, Amendment 1 gives citizens the ability to sue,” Singer said, “and has the legislature very clearly required to follow the same Sunshine Law as everyone else in Missouri government.”

Supervising editor is Mark Horvit.

  • State government reporter, Fall 2018. I am a senior studying investigative journalism. Reach me by email at tbweinberg@mail.missouri.edu or on Twitter at @Tessa_Weinberg.

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