After years of exemption from Missouri’s open records law, state lawmakers have until Friday before their emails, calendars and other materials become available for public scrutiny.
The new transparency, effective Dec. 6, is the result of last month’s passage of the Clean Missouri ballot question. The change means the Legislature has to follow the same rules as “everyone else” in government, Clean Missouri campaign manager Sean Soendker Nicholson said.
Supporters of the ballot measure hope new disclosure requirements will more clearly illuminate the influence that lobbyists and other outside players exert over lawmakers.
But questions remain over how diligently legislators plan to comply with the new wrinkle in the law and what amount of daylight it will actually bring to the Missouri General Assembly. In theory, there’s nothing to stop lawmakers from deleting emails or throwing away records leading up to Dec. 6 and after.
The General Assembly is not legally required to have a records retention policy, said Dana Rademan Miller, the appointed chief clerk of the Missouri House.
“After Dec. 6 if (lawmakers) choose to delete emails, that’s not anything I think we can prohibit them from doing,” Miller said. “No different than if you have a document and you’re finished reading it and you throw it in the trash can.”
The legislature’s new open records obligations come as Missouri’s executive branch is embroiled in controversy over the use of the text message-erasing app Confide.
The issue of legislators being brought under the Missouri open records law is a “moving target,” incoming House Speaker Pro Tem John Wiemann R-O’Fallon said.
“At this point that hasn’t been an issue that we’ve discussed as far as what records are retained and which ones are not,” he said. “That might be something that will be brought up later.”
Rep. Phil Christofanelli, R-St. Peters, speaks for some who fear the new provision will expose confidential constituent information sent via email.
In the past, he said, he’s received letters that deal with sensitive family issues, abortion, sexual orientation, criminal problems and opioid addiction.
“I don’t care about anything on there other than my constituent emails,” Christofanelli said. “Go ahead and go through it, you’ll be awful bored.”
Jean Maneke, the attorney for the Missouri Press Association, argued that even before Clean Missouri’s passage, lawmakers’ records should have been covered by the sunshine law.
But the records portion of Clean Missouri codifies the requirement, she said.
“To me these are legislators who are trying to come up with reasons why this is a bad law, rather than realize these same situations happen day in and day out (within) state government,” Maneke said.
There are limits to the information that is available. More than 20 exceptions already exist in the open records law, including those that keep private most materials related to litigation, security, leasing or purchase of real estate, hiring and firing of personnel and identities of welfare recipients.
“There are exemptions that are there for good reasons,” Maneke said. “But I think that there are legislators who are focused so deeply on wanting to keep things confidential that they lose sight of the fact that the public wants to see what the legislature does and how it works.”
While the sunshine law is geared for transparency in state government, Sen. Jason Holsman, D-Kansas City, fretted about how it will impact lawmakers’ campaigns.
“I’m concerned that the change in law will result in a political playbook to try to trap every elected official into an opposition campaign press release,” Holsman said.
Incoming Missouri Senate President Pro Tem Sen. Dave Schatz, R-Sullivan, said in an interview last week there’s also concern about making public the exchanges that detail development of legislation.
“I don’t know that that communication is vital because ultimately it ends up public once that bill is introduced anyway,” Schatz said. “So the process in which its being worked through....that may get the opposing side or someone that may be opposed to the issue the opportunity to get a glimpse of something that literally they may not even need to be worried about because it may not be in the final product.”
House lawmakers were recently advised they can contact the chamber’s general legal counsel or a private attorney for guidance. Miller has also advised lawmakers they can request an opinion from the state’s attorney general or the Missouri Ethics Commission.
Outgoing Rep. Nick Marshall, R-Parkville, mostly welcomed the change brought about by Clean Missouri.
“I think people having access to their government’s documents is always a good thing,” he said.