Sunshine law doesn't shed light on legislators
This article first appeared in the St. Louis Beacon, March 18, 2012 - St. Louis County Assessor Jake Zimmerman knows the "sunshine law." As a county official, Zimmerman regularly receives open records requests from citizens about tax matters. And he also dealt with such correspondence when he worked as an aide in Gov. Bob Holden’s administration.
But the law didn't apply to Zimmerman when he was a state legislator representing central St. Louis County — although he tried unsuccessfully to change the law, which makes legislators' documents and emails off limits.
“In my judgment, that position has always been kind of nonsense,” Zimmerman said. "The sunshine law was written to apply to all mechanisms of government. We expect the governor’s office to produce their records if asked. A taxpayer expects records from my office if asked. There’s no reason it shouldn’t apply to legislators."
The sunshine law is one way the public can keep elected officials accountable.
Some state Democratic lawmakers and advocates of the sunshine law say the current policy protecting legislators provides a cloak of secrecy over legislative decision-making.
“Through the years, there have been allegations of people using state computers and state employees for electioneering (or) improper fundraising,” said Charles Davis, a professor of journalism at the University of Missouri-Columbia. “There have been real allegations lobbed throughout the years that if sunshine were addressed, it would really help.”
But others say the move could be unnecessarily burdensome, potentially exposing sensitive communications.
“If that were the law, you would have an extreme chilling effect on the public contacting individual legislators,” said House Majority Leader Tim Jones, R-Eureka, who is likely to be the next speaker of the Missouri House.
Clouds over sunshine law
Missouri law requires each public governmental body to appoint a custodian responsible for maintaining the records. It goes on to say that “each public governmental body shall make available for inspection and copying by the public of that body's public records.”
State statutes define a public governmental body as “any legislative, administrative or governmental entity created by the constitution or statutes of this state, by order or ordinance of any political subdivision or district, judicial entities when operating in an administrative capacity or by executive order.”
Auditor's report on law
State Auditor Tom Schweich released a report earlier this week on state and local governments’ observance of Missouri’s sunshine law.
Spence Jackson, Schweich’s spokesman, said in an e-mail that the report is “a summary of findings in various state and local government audits.”
The summary of more than 300 reports from January 2010 to December 2011 recounted a host of violations, from failing to document a vote to holding closed meetings without posting adequate notice. It also found that several agencies lacked policies and procedures regarding public access to records.
"It is imperative the public entities take the sunshine law seriously and abide by its requirements, Schweich said in a statement.
The report didn’t mention whether legislative offices should be subject to open records requests.
The Sunshine Law has been instrumental in a number of investigations. For instance, open records requests were used prominently to examine the controversial firing of Scott Eckersley, a deputy counsel to then-Gov. Matt Blunt, a Republican.
But the standard is different for individual legislators. In November 2007, then Republican Party spokesman Paul Sloca requested emails and documents from 19 Democratic legislators, but House officials denied the request.
And in 2008, Blunt’s office sent a Sunshine request asking for then-House Minority Leader Jeff Harris’ e-mails. While Harris pledged to comply, then-House general counsel Don Lagrasso told the Columbia Daily Tribune that case law found that documents and e-mails of individual lawmakers are not subject to the Open Meetings and Records Law because members of a legislative group are not considered public governmental bodies.
Jim Howerton, administrator of the Missouri Senate, said in an e-mail to the Beacon that as custodian of records for the Missouri Senate, he views “any requests of documents that are in the possession of the Senate as being subject to the Sunshine Law.” Those would include, he said, any chamber or committee records.
But, he went on to say, “records that are in the possession of an individual senator are not subject to the Sunshine Law as they are not in the possession of the custodian of records and are not required to be, as individual members of a governmental body do not constitute a governmental body.”
Kansas City attorney Jean Maneke disagrees. Maneke, who specializes in open records law cases, pointed to a 1995 case involving a request for then-House Speaker Bob Griffin’s phone records.
Included in the decision was an opinion from the attorney general’s office that stated “telephone records of an individual member of the General Assembly utilized by the House Accounts Committee to reimburse a telephone company for services received are ‘record[s] ... retained by ... any public governmental body.’” That opinion should apply to any record, such as emails, she believes.
“You can’t say that records in a legislator’s office under any scenario are not records of a governmental body,” Maneke said. “Whether it's paper documents in their office or electronic records in their computer, I think those are all going to (be) public.
“A legislator is an entity created by statute,” she added. “Now they may not have meetings, but I think they have records.”
According to the Reporters Committee for Freedom of the Press’ Open Government Guide, state laws vary considerably. For instance, Minnesota’s open records laws evolved over time; as a result of a 1993 controversy over personal use of long-distance telephone cards, "the legislature passed legislation rendering certain records, including telephone records, public."
Conversely, Virginia’s open records laws exempt from disclosure any “working papers and correspondence prepared by or for members of the General Assembly or the Division of Legislative Services.”
And in Oklahoma, legislators are trying to apply the state's open records laws to the state legislature. According to the Tulsa World, the bill would allow people to demand copies of any records held by lawmakers with certain exemptions, including personnel records, legislative caucus meetings and communications between legislators and their constituents.
Push for change slowed
Zimmerman attempted to change state law to include lawmakers as a public governmental body, but his amendment ended up failing, albeit narrowly.
Such a defeat, he said, was regrettable.
“Government should be open and transparent; that’s our job,” Zimmerman said. “The taxpayers pay my salary, and the taxpayers pay the salary of the 150 people who work for me. … Our fundamental job, all of it, is transparency. And I have no problem with that applying to me when I worked for a governor and I have no problem applying to me now. And it should have applied to me last year when I was in Jeff City.”
Jones — who handled the sunshine law bill in 2009 — said that expanding open records laws to include legislators could have unintended consequences.
For one thing, he said, it could expose sensitive communication about child support, unemployment benefits or incarceration.
“If any individual legislator's office was subject to sunshine law requests, we would potentially be invading the privacy between legislator and constituent,” Jones said. “I look at it as sort of analogous to the attorney-client privilege or an attorney-client relationship, sort of a legislator-constituent privilege. I would not want to expose an individual legislator's e-mails or communications with the public as a whole.”
Jones added that many legislators’ meetings — including executive sessions — are open to the public and the press. He also said nothing stops a constituent from making public any communication involving a legislator.
“If I have a communication with a member of the public — whether they're a constituent or they're a member of an association or whether they're not my constituent — that person in their judgment could take that item and disseminate it to the entire world. Put it on Twitter or Facebook,” Jones said. “I just think the legislator's office should not be subject to that kind of invasiveness from a third party that does not have any bearing on that issue.”
To be sure, making the change wouldn’t be without cost. Jones said that altering the policy would require new equipment and eat up the time of legislative staff.
“We already respond to hundreds — if not thousands — of inquires every week,” said Jones, adding that even as a member of leadership he only has a legislative assistant, a part-time intern and a legislative director. “If [Jones’ legislative aide] had to take her time and respond to sunshine law requests, my constituent service would suffer.”
While Zimmerman didn’t discount the increased cost, he added that keeping misdeeds under wraps could result in even more wasted money.
“Responsiveness costs money,” Zimmerman said. “But governmental inefficiency — or worse… governmental corruption — costs a lot more money. This comes with cost and my office deals with that every day when we deal with public records requests. But that’s why the law has procedures that require taxpayers to pay for the records. Agencies are entitled to collect their reasonable costs when complying with the sunshine law.
“And if that law works well enough for an executive agency, I don’t see why that rule can’t work well for a legislative agency as well,” he added.
What's good for the goose?
While some lawmakers are wary of applying the sunshine law to themselves, they have had no problem expanding it to others.
For instance, Jones was one of a bipartisan group of lawmakers who wanted to make the Appellate Apportionment Commission subject to the sunshine law. The commission consists of six appellate judges who decide the boundaries for state House and state Senate districts.
The panel, which was roundly criticized for its state House and Senate maps, also faced scrutiny for conducting its business in private.
The Columbia Daily Tribune reported earlier this year that both Jones and House Minority Leader Mike Talboy, D-Kansas City, submitted Sunshine Law requests for the commission’s records, including meeting minutes and communication with outsiders during the process.
“Redistricting should be open to the public because it’s affecting the political boundaries of the entire domain,” Jones said.
But members of the legislature have commonly written high-profile legislation behind closed doors. During congressional redistricting, legislators regularly met behind closed doors to iron out differences between House and Senate maps. And during last year's largely unproductive special session, lawmakers often met in private to discuss a wide-ranging economic development bill.
Rep. Jason Kander, a Kansas City Democrat running for secretary of state, introduced wide-ranging ethics legislation this year that includes applying the sunshine law apply to individual legislative offices. That measure states that “any public official, statewide elected official, or employee of the state and its agencies when such persons are operating in their official capacities” would be considered a public governmental body.
“While it’s reasonable that we take a look at what’s proposed in terms of redistricting, redistricting is something that comes up once every 10 years,” Kander said. “It’s important, but this is something that we deal with every single day.”
In any case, Kander’s bill, which also includes curtailing lobbyists' gifts and establishing caps on campaign donations, may not have much traction. Jones told the Kansas City Star said that he doesn’t think “ethics bills” have a good chance of passing during an election year.
And journalism professor Davis said it would be a “great understatement in the history of understatements” to say that lawmakers don’t want to include their records under the Sunshine Law.
They are, he said, “loath to make themselves subject to the law, even though they’re fairly eager to make everybody else subject to it.”
The Center for Public Integrity, Global Integrity and Public Radio International collaborated on a months-long “state integrity investigation,” a first-of-its-kind, data-driven assessment of transparency, accountability and anti-corruption mechanisms in all 50 states. The overview story on Missouri by Mike Sherry was part of that project. The St. Louis Beacon received a grant from the CPI to participate; the article by Jason Rosenbaum on state legislators was funded by the grant.