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Missouri lawmakers claim they’re exempt from the Sunshine Law

The Missouri House and Senate have interpreted the Sunshine Law not to apply to individual lawmakers - even though it does apply to the legislature as a whole, legislative committees and legislative staff. (AP Photo/Orlin Wagner)
The Missouri House and Senate have interpreted the Sunshine Law not to apply to individual lawmakers - even though it does apply to the legislature as a whole, legislative committees and legislative staff. (AP Photo/Orlin Wagner) AP

When he first became chief clerk of the Missouri House in 2006, Adam Crumbliss’ view of Missouri’s Sunshine Law likely wasn’t much different than most.

“Legislators are part of government,” he said. “Government records are open. So I assumed legislative records should be open.”

Over time, as he’s studied the issue further, his opinion evolved.

He eventually came around to the interpretation championed by the House and Senate for years: The Missouri Sunshine Law, designed to cast light onto the workings of government, doesn’t apply to individual state representatives and senators or their staff.

Last week, the Missouri Supreme Court heard arguments in a lawsuit that has the potential to either reject or affirm that interpretation.

While the court mulls its decision, Missourians currently don’t have access to things such a communications between legislators and constituents, lobbyists or interest groups, along with other documents that may better reveal how a lawmakers conducts themselves in office.

Officials in both the House and Senate say the Sunshine Law exemption serves a noble purpose.

“It sounds great when people say that it’s a government record, so it should be public,” Crumbliss said. “But there are practical reasons why it’s not the case.”

Constituents who reach out to their legislator with sensitive issues have a “reasonable expectation of privacy,” Crumbliss said. And just as important, opening records up to the public would have a “massive chilling effect on the legislative process.”

For example, a lawmaker who takes a no-new-taxes pledge his first year in office may fear ever considering a future tax increase, Crumbliss said, if there was a chance his private deliberations could be made public.

“You would stunt the ability of an individual (legislator) to evolve on an issue,” he said. “I have to make sure that we don’t allow things to occur that would prevent legislators from honestly investigating ideas that may be contrary to their publicly stated position for fear of it being used against them in a campaign commercial or attack ad.”

Critics say that’s the problem.

The law isn’t intended to protect lawmakers who tell constituents one thing back home and then do another when they get to Jefferson City. By shielding their records from public scrutiny, critics say, legislators are contributing to a growing suspicion of government.

That’s especially true coming off a year that was largely defined by legislative scandal — including the resignations of two Missouri lawmakers over inappropriate conduct with interns.

“There’s a lot of mistrust of all levels of government right now,” said Ryan Johnson, president of the conservative nonprofit Missouri Alliance for Freedom. “This adds to that mistrust.”

‘Public governmental body’

Proponents of exempting legislators from the Sunshine Law buttress their argument by pointing to a pair of lawsuits – one from 1996, another from 2003 – where courts ruled that while a school board is subject to the Sunshine Law, individual members of that school board are not.

Media law experts say things aren’t so cut and dry. The question of whether the Sunshien Law applies to the Missouri General Assembly has never been directly addressed by Missouri courts.

“None of us know what a court would say,” said Jean Maneke, a Kansas City attorney and counsel for the Missouri Press Association.

It all comes down to what is considered a “public governmental body.”

The General Assembly as a whole is, but the 197 lawmakers composing the legislature are not each “public governmental bodies” themselves, said Marga Hoelscher, Missouri Senate administrator.

“An individual senator can’t act on behalf of the entire Senate,” Hoelscher said. “They’re just one person. So they don’t fall under the definition of a ‘public governmental body’ as defined by (the Sunshine Law).”

Two years ago, a report by Republican State Auditor Tom Schweich criticized the legislature for adopting what he deemed a 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.

Since that report, there’s been little enthusiasm among legislators to change the law. Hoelscher said the outcome of a pending lawsuit before the Missouri Supreme Court could change that.

A liberal advocacy group called Progress Missouri sued the Missouri Senate last year after senators repeatedly refused to allow the group to record video of public committee hearings. The Senate argues the state constitution gives it the authority to create its own rules, superseding the Sunshine Law.

The court heard arguments in the case last Wednesday.

Regardless of who the court ultimately sides with, it could issue either a narrow ruling focusing just on recording of public hearings or a broader ruling that answers the Sunshine Law question once and for all.

A decision is expected later this year.

Turning over emails

In the meantime, the disagreement over whether the Sunshine Law pertains to legislators plays out even among lawmakers themselves.

The Senate, for example, refuses to turn over emails of individual senators or their staff, even though the emails are housed on a server paid for and maintained by the Senate.

However, Republican Sen. Kurt Schaefer of Columbia recently turned over his emails pertaining to interactions with University of Missouri officials to a reporter from a local television station.

In the House, a request by The Star for the emails of former Rep. Don Gosen, a Republican from St. Louis County who resigned from the legislature earlier this month under a cloud of suspicion, was denied last week.

Even though he no longer serves in the Missouri General Assembly, the emails in question “are the representative’s and are not the House’s,” Missouri House Counsel David Welch said in an email to The Star.

By contrast, when The Star requested the emails of House Minority Leader Jake Hummel, a St. Louis Democrat, they were turned over within the hour.

“To pretend we’re not subject to the Sunshine Law is laughable,” Hummel said. “With all the issues we’ve had, the public perception of elected officials is pathetically low. Don’t we owe it to the public to try to give them a little more faith in their legislature?”

House Speaker Todd Richardson, a Poplar Bluff Republican, said he abides by policy that individual lawmakers are not subject to the Sunshine Law. He declined to comment on whether he supports that policy.

Around the nation

Missouri lawmakers are hardly alone in their view of the Sunshine Law.

Members of the legislature are specifically exempted from the Kansas Open Records Act, said Ron Keefover, president of the Kansas Sunshine Coalition for Open Government. The same is true in Oklahoma, Iowa and many other states.

But legislators are not exempt in states as diverse as Florida, Idaho, Maine, Tennessee and Utah. Some emails are exempt in Colorado and Connecticut, but not those pertaining to public business.

Jonathan Groves, associate professor of communications at Drury University in Springfield and president of the Missouri Sunshine Coalition, said even if lawmakers believe the letter of the law exempts them from public disclosure, “the spirit of the law surely calls for transparency.”

“When you are legislators and you’re doing the public’s business, those records should be open,” Groves said. “I have a tough time understanding why legislators would want to close off how they do their work.”

Crumbliss, the chief clerk of the Missouri House, bristles at the idea that the House has no interest in transparency.

Since he’s been clerk, audio recordings of House debates have begun being archived and made available to the public on the House website. Efforts are underway to live stream committee hearings as well. Lawmakers are no longer allowed to introduce last-second amendments or floor substitutes for bills, and now all amendments are also available online.

“We’ve moved transparency beyond the confines of the Capitol building,” he said “We’ve made great strides. I absolutely believe in transparency.”

As for open records, whether or not the law should be changed is “up to the lawmakers to decide.”

“I have an obligation,” he said, “to follow the law.”

Jason Hancock: 573-634-3565, @J_Hancock

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