Attorney General Eric Schmitt’s office is seeking emails from the Columbia Missourian and two MU journalism school professors in an apparently unprecedented attempt to access journalists’ communications.
Schmitt — the Republican nominee for Missouri’s open U.S. Senate seat — used the state’s open records law in June to request three years of some emails sent and received by the professors.
The records are under standard legal review to determine what must be released to the attorney general.
The request appears to center around the Missourian’s collaboration with PolitiFact, a nonpartisan newsroom that fact-checks statements by public officials.
David Kurpius, the journalism school’s dean, said the school supports the principles of open records laws.
The school will “comply with the request to fulfill the lawful duty that we have,” Kurpius said, though the UM System is consulting external media attorneys to determine how Missouri’s Sunshine Law applies to the requested emails.
The university won’t release records that “have legal protections that are warranted,” Kurpius said. “This is a case that you need to have a person who is an expert in media law.”
Some legal experts expressed apprehension regarding the precedent Schmitt’s request could establish.
“There are some real concerns when it comes to revealing the work product of journalists,” said Mike Hiestand, a senior counsel at the Student Press Law Center. “I think this raises some serious legal questions.”
Emails and other records at most private-sector news organizations wouldn’t typically be subject to open records laws, but the Columbia Missourian is financially supported by the University of Missouri, which is a public entity.
The Missourian operates independent of university oversight, though most of its reporters, photographers and other staff perform their tasks for class credit toward MU journalism degrees. It’s staffed by professional editors who oversee the students’ work as MU faculty members.
The attorney general’s office requested emails that were sent and received by Mike Jenner and Tom Warhover, who led the Missourian’s collaboration with PolitiFact in varying capacities.
Jenner is an endowed journalism chair and board member of the Missourian Publishing Association, a nonprofit that governs the Missourian. Warhover is an associate professor and editor-at-large for the Reynolds Journalism Institute.
Warhover served as the Missourian’s executive editor for 15 years before stepping down from the top newsroom job in 2017. Jenner succeeded Warhover on an interim basis, spending about a year and a half in the role.
Schmitt’s office asked for messages containing keywords like “Truth-O-Meter,” a product of PolitiFact’s reporting, but also requested emails that include variations of the term “fact-checking.”
Those broader search terms are more likely to include emails related to the reporting process, including communications about newspaper sources and story drafts.
A spokesperson for Schmitt’s office declined to specify what the attorney general’s team is looking for in the records.
“The request speaks for itself, and we appreciate the university for cooperating with us on this request,” Chris Nuelle, Schmitt’s spokesperson, wrote in an emailed statement.
Nuelle also declined to respond to other aspects of the request and any potential legal precedents that could be set.
The Missourian learned of the search by making its own open records request under the state’s Sunshine Law. The Missourian request asked for a log of public records requests maintained by the UM System between March 15 and Aug. 12, and the request by Schmitt’s office was among several hundred on the list.
Pre-publication information can be taken out of context, Jenner said, so an elected official having access to news-gathering records creates the “worst possible scenario.”
The UM System, like other state agencies, can review records before their release to redact portions protected under other laws — like some student information, which is controlled by the federal Family Educational Rights and Privacy Act.
The UM System general counsel’s office is ultimately responsible for that legal review, spokesperson Christian Basi said.
It’s not immediately clear what portions of the records might be withheld from the attorney general’s request. Records could also come at a cost, though that appears unlikely.
A subsequent open records request submitted by the Missourian showed that the UM System didn’t charge the attorney general’s office for records in advance.
It’s been the practice of the university system to provide records for free to elected officials, said Paul Maguffee, the UM System’s deputy general counsel.
The system has no formal policy regarding whether elected officials will be charged, Maguffee said, and those requests are infrequent.
Email correspondence regarding the attorney general’s ask, obtained through another open records request, shows that the UM System initially identified more than 5,000 emails that fell under the search terms, producing more than 30,000 pages of material — though Schmitt’s office later modified its criteria to exclude newsletters.
Journalism and the Sunshine Law
The journalism school and Missourian’s partnership with PolitiFact began in 2015.
As part of a journalism school course, students would investigate the factual accuracy of statements made by politicians and elected officials for articles.
“It’s just good accountability reporting,” Jenner said.
Aaron Sharockman, the executive director of PolitiFact whose emails were also requested by Schmitt, said that the newsroom’s reporting “is free and available for all to see and scrutinize.”
“We don’t use off-the-record information, and we publish a list of sources with each story,” Sharockman wrote in an emailed statement. “Our methods and reporting are transparent, and we’d be happy to sit down with the attorney general at any time to discuss our work, or his ideas for continued accountability journalism.”
Jean Maneke, an attorney who regularly partners with the Missouri Press Association, said she is “a little surprised” that the Missourian’s potential susceptibility to open records request hasn’t come up before given its connection to MU.
“The thing that makes this so unique is that most journalists aren’t in a position where the Sunshine Law can be used against them,” she said.
But whether a newspaper like the Missourian meets the Missouri Sunshine Law’s definition of a “public governmental body” could become a point of contention. Missouri law contains several categories of entities that are subject to open records law, including those that operate through agreements with public bodies or receive taxpayer money — though the latter category is only open to records related to public money.
The fact that Schmitt, Missouri’s top legal official, is involved in the request stood out to legal experts.
“Journalists have always felt like the Attorney General’s office was a supporter of the use of the Sunshine Law,” Maneke said.