A recent court ruling that the Missouri attorney general’s office “knowingly” violated the state Sunshine Law in 2018 is an important reminder: The state legislature must make Sunshine Law reform a top priority next year.
Governments should not make public decisions in the dark, where citizens can’t see.
The Missouri Sunshine Law first passed in 1973, almost 50 years ago. It has been amended several times since. It’s a collection of statutes that provide a framework for access to government documents, agendas and internal debates.
The law requires public bodies to hold most of their meetings in public, and to tell the public in advance what will be discussed. It also describes a process to obtain records and communications involving public officials, both elected and nonelected.
Behind the Sunshine Law is a simple concept: The people have a right to know what their government is doing, and why. Government documents don’t belong to their creators, or recipients — they belong to the people who paid for them. The people deserve reasonable, inexpensive and timely access to relevant public communications.
Yet government bodies routinely act as if public access to public meetings and materials is a privilege. Cities and political bodies sometimes charge exorbitant fees for copies of documents that are reviewed for months before release. Sometimes records are improperly withheld, forcing taxpayers to go to court — often at great expense.
Frustrated Missourians, lacking the resources to fight the city, or the school board, or the governor’s office, often abandon their records requests as a result.
Ducking the law’s requirements is popular, too. The recent Missouri ruling said the attorney general’s office under then-AG Josh Hawley knowingly evaded the law by using private email accounts to communicate with political consultants. The office must pay a $12,000 fine — which will likely come from tax revenue.
It’s clear the Sunshine Law needs a careful overhaul. What might that look like?
First, lawmakers must consider a change in supervision and enforcement of the Sunshine Law’s provisions, which currently rest with the state attorney general. The last two occupants of that office corrupted it so badly that equitable pursuit of Sunshine Law claims became impossible.
Outgoing Attorney General Eric Schmitt is particularly to blame. His office has fought Sunshine Law requests repeatedly, refusing to pursue violation claims against state agencies. At the same time, Schmitt weaponized the law against disfavored public bodies in a crass (and successful) attempt to further his political ambitions.
The words “Schmitt” and “sunshine” don’t belong in the same sentence.
As a first step, the legislature should consider a unique entity to oversee Sunshine Law enforcement. It might be an appointee in the attorney general’s office, but independent of it. Alternatively, it could hand the duty to an existing nonpartisan body — the Missouri Ethics Commission, for example.
The oversight office should have authority to quickly pursue public complaints over withheld public documents, and impose real penalties on those who don’t comply.
“We should strongly consider imposing personal financial liability on individuals who purposely violate the Sunshine Law,” said Elad Gross, the Missouri attorney who has battled for records access for years. “Folks who violate the law know that taxpayers are going to foot the bill. That needs to end.”
Of course, frivolous or punitive records requests can be an expensive nuisance, too. Independent review should work both ways — if the oversight body determines a records request is meant to harass a public official, it could reject the request and sanction the requester.
There are other possible reforms. Public officials should face stiff fines if they use message-deleting apps to avoid scrutiny. Quick recovery of legal fees for taxpayers who successfully sue for records access is a must.
The public should be able to insist on postponement of improperly-noticed meetings. (The Kansas City police board has a particular problem with this.)
Deadlines for providing requested documents should be clear. Two to three weeks seems right to us. Too often, public bodies use the review process to delay document production for months.
Last year, Gov. Mike Parson proposed weakening Missouri’s Sunshine Law, an effort that went nowhere. Now is the time to make the opposite choice: Lawmakers should strengthen the law in 2023, guaranteeing timely public access to their government.