Advocates Push for Changes to Missouri Open Records Law
By Audrey Spalding
Show-Me Institute
JEFFERSON CITY — This may be the year for increased government transparency.
At the federal level, President Barack Obama has directed government officials to presume that information is available to citizens when they request it. The Missouri House of Representatives is currently considering legislation that would require governmental bodies to do the following:
- keep more detailed minutes of public meetings (under the current version of Missouri’s records law, minutes of open and closed meetings must include only “date, time, place, members present and members absent, and votes attributed to each member”);
- increase the maximum fine an official must pay for knowingly withholding public information, from $5,000 to $8,000;
- decrease the maximum fine for an official who unknowingly violates the Sunshine Law, from $500 to $100;
- make the government strictly liable for all of a plaintiff’s legal fees, if that plaintiff wins a lawsuit for withheld public information (currently, the loser in a public information suit pays the legal fees of both parties);
- make all records and meetings of the House Ethics Commission open to the public, except for records of investigative proceedings and meetings concerning pending complaints.
This legislation, House Bill 316, is a proposed amendment to Missouri’s open records law, commonly known as the Sunshine Law.
Missouri media law attorney Jean Maneke said the general public has seemed especially supportive of the proposed changes in recent months.
“At a hearing of H.B. 316, we had witnesses coming out of the woodwork,” she said. “It was an incredible experience to see all these people standing up to support this bill who we had not scripted, we had not planted.”
In addition to working with the bill’s sponsor, Rep. Tim Jones (R-Eureka), Maneke also has helped write amendments to the Sunshine Law since the 1990s, some of which are currently in place.
Interestingly, a government official, Brentwood Alderman Thomas Kramer, is responsible for many of the proposed law’s provisions, including strict liability and the requirement that minutes must reflect an accurate account of discussion during an open meeting, or as close as practical.
Kramer’s experience as an alderman is what drove him to contact the attorney general’s office, and then Rep. Jones, with his suggested changes.
“Over five years now I have come to the firm belief that there is not enough incentive for public bodies in general to be mindful of the greater public good which the Missouri Sunshine Law seeks to protect,” Kramer said. He is currently involved in a civil suit in Saint Louis County regarding what he alleges was an “egregious violation of the Sunshine Law.”
While Kramer and Maneke stressed the need for changes in order to encourage government officials to comply with information requests, the Missouri Municipal League has come out strongly against H.B. 316.
“Open meeting laws cover tens of thousands of public volunteers,” said MML Executive Director Gary Markenson. “A new city clerk could violate this law 20 times before she knows there is such a law.”
At the heart of Markenson’s opposition to H.B. 316 is the issue of whether government officials, especially those in smaller communities, understand the Sunshine Law.
“We need far more training,” Markenson said. Though the attorney general’s office holds training sessions, and the MML trains about a thousand city officials each year, Markenson said that’s not enough.
The bill’s proponents, Maneke, Kramer, and Rep. Jones, said not knowing the law isn’t an excuse.
“I think if someone is going to take the step to voluntarily run for political office, on any level, for work in the realm of public service, it’s everyone’s responsibility in that field to educate themselves of what the law requires,” Jones said. He said there are plenty of opportunities for government officials to educate themselves about the Sunshine Law, and that as an attorney he had received continuing legal education notices at least daily.
Kramer also disagreed with Markenson’s point. “For anyone to suggest that a smaller community or public body would lack the intelligence to grasp the understanding of the law would be remarkable,” he said.
At the March meeting of the Missouri Sunshine Coalition, a group that advocates unfettered access to public information, Attorney General Chris Koster announced that he “intends to increase Sunshine Law presentations across the state,” from about 20 presentations per year to 150. “I think the vast majority of violations occur out of ignorance, not malcontent,” he said.
Of course, H.B. 316 hasn’t made it to Missouri’s House of Representatives floor for a vote; that didn’t happen last year, either, and the bill has since been reworked. As Jones put it, “This bill has a long way to go before it’s going to become law.” But the general issue deserves attention: Is the Sunshine Law adequate as is, and will this legislation make it easier for citizens to obtain public information?
“There are times I think our law is relatively clear,” Maneke said, “but Missouri continues to get a bad grade when groups grade every state’s performance on the Sunshine Law.”
A 2007 study by the Better Government Association awarded Missouri an “F” for government officials’ responsiveness to information requests (although, to be fair, 37 other states earned “F” ratings as well).
Even if H.B. 316 passes, it may not address the easiest way for government officials to ignore a request. Officials who want to be unresponsive without violating the letter of the law can simply charge a large fee for processing an information request.
“Agencies use the threat of charging processing fees in order to make people go away,” said Tom Blanton, the director of the National Security Archives, an organization that is dedicated to publishing historically important federal documents. “I’ve seen outlandish fees.”
Currently, the Sunshine Law allows a governmental body to “charge up to 10 cents per page for standard copies,” and a “reasonable fee for the time necessary to search for and copy public records.”
The governmental body decides what constitutes a reasonable fee, although the law does allow fees to be waived for requests that serve the public interest. According to Missouri state statute, requests serve the public interest when the information requested is “likely to contribute significantly to public understanding of the operations or activities of the public governmental body and is not primarily in the commercial interest of the requester.”
Sunshine Week, a national series of events led by the American Society of Newspaper Editors, occurred during the week of March 15–21. It was created to encourage discussion about the benefits of open government and freedom of information.