As state lawmakers continue their push to carve out new exemptions in Missouri’s open records laws, Gov. Mike Parson has seized on a new strategy.
His office is redacting information from public records citing the First Amendment of the U.S. Constitution.
Parson’s approach was greeted with derision by open records experts, each saying they’ve never seen government withhold information from the public by relying on the First Amendment, which protects freedoms of speech, religion, assembly, the press, and the right to petition.
“I do a lot of public records work and talk with people all over the country. I’ve never seen this,” said Adam Marshall, an attorney with the Reporters Committee for Freedom of the Press. “It’s silly. It’s really quite silly. It sounds frankly like someone trying to be cute and cite the First Amendment back to a reporter.”
David Roland, director of litigation for the libertarian nonprofit Missouri Freedom Center, called the situation “bizarre.”
“I don’t think I’ve ever seen the First Amendment cited in this way,” he said, “and I’m clueless as to why they think it might apply to prevent disclosure of otherwise open public records.”
Steele Shippy, Parson’s communications director, said the office uses the First Amendment to redact telephone numbers, addresses and email addresses of private citizens who have reached out to the governor’s office.
The information is blocked out, Shippy said, because someone might not feel comfortable reaching out to voice their opinion to the governor’s office if they thought their personal information might become public.
“A taxpayer’s free dialog to government without retribution must be preserved — which is, without a doubt, protected under the First Amendment,” Shippy said. “The consequence of not doing this would be that every person that reaches out to us with a complaint will be subject to public scrutiny.”
Missouri’s Sunshine Law has received heightened attention during the 2019 legislative session. That’s because voters overwhelmingly approved a constitutional amendment last fall that included a mandate that the General Assembly abide by open records laws.
Lawmakers acted quickly upon returning to the state Capitol in January, pushing bills aimed at closing many of their records from public view.
The latest iteration, approved by a Senate committee on Wednesday, would allow legislators to withhold any record related to a constituent or containing information regarding proposed legislation or the legislative process.
Specifically, lawmakers have expressed heartburn similar to the governor regarding information about their constituents becoming public.
The bill in its current form would only apply to the General Assembly.
Shippy said the governor’s office has always believed it has the authority to redact personal information from its records.
But use of the First Amendment to redact information is a relatively new development, stemming from the hiring of a new legal counsel for the governor’s office. Shippy said it has been invoked only seven times out of more than 75 completed sunshine requests since Parson took office last June.
“The fundamental question should be asked, if a taxpayer wants to lobby a complaint with state government, should private information of that person (i.e., address, cell phone, etc.) be made public?” Shippy said. “Or would it be better to keep that information private in order to let taxpayers feel comfortable to speak freely?”
Mark Pedroli, co-founder of the Sunshine and Government Accountability Project, said using the First Amendment to close records “is so absurd, you would think it was a parody.”
The governor’s logic would also apply to lobbyists, Pedroli said, granting them “First Amendment rights to influence the government in the dark. This isn’t a marginal issue, this goes right to the heart of the Sunshine Law.”
The public should “absolutely be concerned,” Roland said, because it appears all three branches of Missouri’s government are “trying to whittle away citizens’ rights to transparent and accountable government.”
“A willingness to ignore the Sunshine Law’s requirements in regard to relatively small things,” Roland said, “is the doorway to ignoring the Sunshine Law’s requirements in big things.”
Redacting information like phone numbers may seem like small potatoes, Marshall said, but it could have a big impact on the ability to hold government officials accountable.
“I’m thinking about things like call logs,” Marshall said. “If you know a lobbyist’s phone number and you get the call log of a public official and see that every day there are two, three, four phone calls from that lobbyist, it tells you something important about how government is being run.”
The bill making its way through the legislative process was originally far more expansive, closing any records that shed light on deliberations or decision-making at every level of government -- from local city councils, school boards, planning and zoning commissions and law enforcement.
The exemptions to the law were paired down by a Senate committee to only apply to the legislature. The bill now also calls for a minimum fee of $5 for a records request and creates a deadline of 30 days for payment.
The bill also originally would have banned any state employee covered by the Missouri Sunshine Law from using self-destructing text message apps.
That proposed ban was inspired by former Gov. Eric Greitens’ use of Confide, an app that automatically deletes a text message after it has been read. A lawsuit, alleging that use of Confide by the former governor and his staff amounted to a conspiracy to evade open records laws, revealed that nearly every member of the Greitens’ staff had Confide accounts while they were on the government payroll.
It was later discovered that the top staffers in both the treasurer’s office and attorney general’s office also had Confide accounts.
More recently, The Star reported that the Missouri State Highway Patrol used a different self-destructing text messaging app called Silent Phone for more than four years. The app was also used by the governor’s office under Greitens.
The ban on self-destructing text messaging apps was removed from the bill after members of law enforcement expressed concerns.