Guest Commentary

Missouri applies its Sunshine Law selectively. That must end

Patrick Ishmael, director of government accountability at the 501(c)(3) nonprofit Show-Me Institute.
Patrick Ishmael, director of government accountability at the 501(c)(3) nonprofit Show-Me Institute.

State and local governments have a responsibility to make public documents available to anyone seeking them, and also to treat all requests for those documents equally. Missouri’s Sunshine Law is a crucial tool for facilitating this transparency, empowering all residents of the state to see what their government is doing in their names.

Unfortunately, Missourians can’t always depend on their government to comply with the Sunshine Law, and the requirement of equal access to public information has become the latest battleground in the ongoing war for government transparency. A recent records request made by the Show-Me Institute to the state’s Office of Administration illustrates this point clearly, and it is why we have filed a Sunshine Law case in state court against the office, with the assistance of the Freedom Center of Missouri.

The facts and the law of the case are straightforward. In 2015, the Office of Administration entered into a contract with AFSCME — the American Federation of State, County, and Municipal Employees — in which the government agreed to periodically provide the union with a wide range of information about public employees who might potentially become union members. State law allowed the government to keep this information private if it had wanted to do so. However, the Office of Administration made the choice not to keep the information private, and for at least the past four years it has provided this information to AFSCME quarterly.

When we learned that the government had struck a deal to provide information to the union, we wanted to see for ourselves whether the Office of Administration was trying to release these documents to select members of the public, or whether it would treat all such requests equally and in compliance with the Sunshine Law. Accordingly, we filed a request for copies of the exact same documents that the government had already provided to AFSCME.

In response, the office provided the Show-Me Institute with copies of those documents … but with 90% of the information redacted. An attorney for the government acknowledged that AFSCME received unredacted copies of these records, but claimed that this selective disclosure was justified under the Office of Administration’s contract with the union. But this defense is precisely contrary to the Sunshine Law, which forbids the government from relying on a contractual arrangement to justify giving one private entity information that the government would withhold from others.

Nor is this the first dubious excuse we at Show-Me have heard from government entities at various levels failing to comply with the Sunshine Law’s requirements. We have been told that records do not exist even when we know for certain that they do. We have been told that we would have to pay more to obtain certain records than other private entities were asked to pay for the same information. And we’ve been told it would cost thousands, and even tens of thousands of dollars to obtain copies of data that can be readily reproduced with little trouble.

In other words, the obstructionism displayed by the Office of Administration is a variation on a theme that keeps repeating at all levels of government and in all parts of the state. That obstruction needs to end.

And this time, we’re taking the matter to the courts. Government entities may think they can get away with these excuses because too few citizens are able to invest the time, money and emotional energy required to pursue a legal fight to keep these government entities transparent and accountable. We have determined that this case is a crucial opportunity to ensure equality in government transparency for all Missourians. It is but one of many such opportunities.

Government cannot pick and choose which private actors get access to certain public information. Transparency for one must mean transparency for all.

Patrick Ishmael is a freelance writer and the director of government accountability at the Show-Me Institute, a 501(c)(3) nonprofit dedicated to promoting free markets and individual liberty.