JEFFERSON CITY— The Sunshine Law, Missouri’s open records law, could be getting a big boost through legislation discussed Monday in a state House hearing.
Missouri would join at least 15 other states in creating an official division that would not only enforce open records laws more strongly, but also provide guidance to the public and smaller government entities in navigating the Sunshine Law. Punishments for the law’s violations would be increased, too.
Two identical bills, sponsored by Rep. David Gregory, R-St. Louis, and Rep. Jean Evans, R-Manchester, would give the Missouri Attorney General’s Office subpoena power when enforcing the Sunshine Law on governmental public bodies.
Currently, the Attorney General’s Office has to rely heavily on the cooperation and willingness of the governmental body being investigated. The only way to encounter Sunshine Law violations is through a lawsuit, which could be costly, Gregory said.
“That’s wrong. We need to give the attorney general the power to investigate what he sees as wrongdoing and protect our people from their own government,” Gregory said.
Daniel Hartman, representing Attorney General Josh Hawley’s office, pointed to the investigation into Gov. Eric Greitens’ Confide scandal, among others, as to how limited enforcement powers are. The Attorney General’s Office found no evidence of wrongdoing but could only interview members of the governor’s staff. Hawley has said the case is one indication of why his office needs subpoena powers.
“Many Missourians may not realize that as the law stands now, the office has no subpoena power, as we do in other cases, such as Medicaid fraud or consumer protection cases,” Hartman said. “There is no way to legally compel a body to take part in the investigation. The office may ask vigorously. They can only hope for a positive reaction.”
Rep. Peter Merid ith, D-St. Louis, asked what would happen if agencies still refused to cooperate and refused to pay the fee in failing to do so.
“Wouldn’t you still have to go to court for that?” he asked.
Gregory responded saying this would set a lower bar for the attorney general to sue to force compliance.
“You have to have sufficient information to file a lawsuit (now),” Gregory said. The bill would let attorneys sue for simply not complying.
The bill would also create a transparency division within the Attorney General’s Office.
Attorneys who work in the division would not be able to represent the state in other matters, so conflict of interest would not be present, giving the office free pursuit of Sunshine Law cases.
Another aspect of the division the sponsors emphasized was the guidance the division would provide.
“For our smaller entities, if they’re not familiar with the law, where do they go for guidance? In a town of a mayor with only 1,500 people, where they don’t have that much experience, if they get a sunshine request, what do they do? (The division) would provide guidance from a low level to a high level,” Evans said.
Rep. Robert Cornejo, R-St. Peters, questioned the financial estimate of no cost in the legislation, wondering whether creating a whole new division would not require any additional funding.
Penalties would increase as a way to ramp up enforcement.
“By having strong penalties, we make it known that governmental agencies need to be training their employees on this law,” Jonathan Groves, president of the Missouri Sunshine Coalition, said.
Hartman noted there were discrepancies with current penalties. “If someone fails to retain documents it knows it has to retain, that is not a Sunshine Law violation. The records no longer simply exist,” he said.
Currently, there is a maximum $5,000 fine for purposeful violations. The bill would increase the punishment for those who knowingly violate open record laws to a Class B misdemeanor with a fine between $500 and $10,000 and attorney fees. Those who unknowingly violate would be fined a maximum of $1,000.