Although Missouri law requires public officials to comply with open-government laws, the state’s lawmakers say they’re immune.
While they admit the Sunshine Law applies to the legislature as a whole, Missouri House and Senate officials contend it doesn’t apply to individual legislators.
That has allowed lawmakers to keep secret things such as communications with constituents and interest groups, along with other documents that may contribute to how they conduct themselves in office.
Legislation filed this year
by Rep. John Mayfield, an Independence Democrat, aims to open more of that material to the public.
“When the public’s confidence in politics and government institutions is at an all-time low, we should demonstrate we’re trying to be as transparent as possible,” Mayfield said.
The Sunshine Law is designed to cast light onto the workings of government, but powerful figures in the General Assembly have resisted any effort to specifically include legislators. They argue that some conversations need to remain private so people can talk candidly with their elected representatives.
A report last year by Republican State Auditor Tom Schweich criticized the legislature for adopting what he deemeda hypocritical stance on open records
. The state’s Sunshine Law is ambiguous in relation to its impact on individual lawmakers, Schweich’s report found, and the General Assembly should amend the law so that it clearly applies to individual legislators.
“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 concluded.
Missouri’s open records and meetings law
applies to any “public governmental body.” Included in that definition are legislative entities created by the Constitution, state statutes or ordinances of political subdivisions such as cities and school districts.
Jim Howerton, administrator of the Missouri Senate, said he makes any records available to the public that he has in his custody. That doesn’t extend to the records of individual senators, he said, who “individually do not comprise a governmental body.”
That has been the interpretation of the law within the General Assembly for years. While the official stance of the House and Senate is that individual lawmakers are exempt from the Sunshine Law, not all legislators agree.
“Our offices are completely funded by the taxpayers,” said House Minority Leader Jacob Hummel, a St. Louis Democrat. “There’s no reason our records shouldn’t be open. Why should we be above the law?”
House Judiciary Chairman Stanley Cox, a Sedalia Republican, signed on as co-sponsor of Mayfield’s legislation. He says it has always been his understanding that a legislator’s office must abide by the laws that govern any other public offices.
“I’ve had a lot of open records requests in my tenure up here, and we’ve always responded to them,” Cox said. “Our actions should be open to the public.”
Cox said he expects the bill to get a hearing in his committee after lawmakers return from spring break on Monday.
Previous efforts to amend the law to include lawmakers have run into powerful opposition.
Media law experts were unaware of a blanket exemption from the state open records law for legislators.
However, Kansas law does exempt some records for public agencies with “legislative powers.” Records related to proposed legislation or amendments to legislation could be closed unless they are identified or cited at a public meeting or on an agenda for a public meeting. They also would be open if they are distributed to a majority of a quorum of a governing body.
Records related to research for a member of the legislature could be closed to the public, too, as long as they are not identified at a public meeting or distributed to a quorum of the governing body.
In Missouri, House Speaker Tim Jones sponsored legislation in 2009 aimed at strengthening the state’s Sunshine Law. But he opposed an attempt to add an amendment applying the law to legislators.
Jones, a Eureka Republican, told the St. Louis Beacon he feared doing so would “have an extreme chilling effect on the public contacting individual legislators.” He compared the contact between lawmakers and constituents to that of attorneys and their clients.
Whether the law applies to individual lawmakers is a question that hasn’t been addressed by the courts, said Jean Maneke, a Kansas City attorney who serves as counsel to the Missouri Press Association.
“Courts have touched on this issue over the years, but there’s never been a definitive ruling,” she said.
It has been 10 years since major changes have been made to the state’s Sunshine Laws, Maneke said. For the last few years the Missouri Press Association has backed legislation sponsored by Republican Sen. Kurt Schaefer of Columbia that wouldcreate a greater likelihood of penalties for violations
of the state’s open-meetings and records law.
“It’s clear the law needs more teeth to ensure government is being transparent, which it’s supposed to be already under existing law,” Schaefer said.
Existing law allows fines of up to $1,000 against officials or governmental bodies who “knowingly” violate open-records and meetings statutes. Someone raising a complaint about a violation must show that the governmental body is required to comply with the law and that the meeting or record was closed. The government then must demonstrate it complied with the law.
Among other provisions, Schaefer’s bill would reduce the fines to $100 but would no longer require that violations were “knowing.” The government would shoulder the burden of proving a meeting, record or vote should be closed to the public.
“We create a presumption that records are open unless there’s a reason to close them,” he said.
Schaefer’s bill has consistently run into opposition from local government organizations, such as the Missouri Municipal League and Missouri Association of Counties.
The bill does not address the questions surrounding individual lawmakers in the Sunshine Law, though Schaefer said he has always assumed his office falls under the definition of a public body.
“I can’t think of anything in my office that I’d consider closed,” he said. “Anyone who opposes greater transparency in government has a pretty high burden to try to explain why they think that’s a good idea.”