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Changes needed to prevent Sunshine Law evasion

The 50th Golden Anniversary of Missouri’s Sunshine Law made me wonder what could be done to restore the vision of Missouri’s Sunshine Law’s original sponsors.

Recent news stories and editorials in the St. Louis Post-Dispatch and the Kansas City Star have concluded that the Sunshine Law needs an “overhaul.”

I couldn’t agree more strongly.

Various actions by public officials undermined leaders’ vision of the 1973 legislation to make government records and meetings available to the public.

The Star editorial cited the “exorbitant fees for copies of documents that are reviewed for months before release”.

The Post-Dispatch cited examples of digital technology used by state officials to block public access to public affairs.

Digital methods that did not exist in 1973 now provide easy methods to circumvent the Sunshine Law as some state officials have used email transmission via a private cell phone which leaves no public government trail for disclosure.

There is also an app used to delete the message when read by the recipient.

I have several ideas to reinforce the vision of the original sponsors of Sunshine Law.

My first suggestion would be to get the Sunshine Law into the state constitution. This would protect it from legislative tampering without voter approval.

Furthermore, a constitutional amendment would affect the legislature itself.

This would address a recent state appeals court decision that effectively said that the Sunshine Act cannot limit the constitutional power of the General Assembly to govern its own proceedings.

Another significant change I suggest would be to remove enforcement of Sunshine Law violations from the state attorney general.

This would address an obvious conflict of interest cited by various news reports over allegations that former Attorney General Josh Hawley and his government staffers used private cell phones to send messages that left no public record subject to disclosure.

A Kansas City Star editorial proposed that Sunshine Law enforcement be entrusted to the Missouri Ethics Commission.

MEC has extensive experience in enforcing campaign finance and lobbyist reporting requirements and putting that information online for anyone to see.

Having MEC look into Sunshine Law complaints would avoid the lengthy and costly legal process now required to obtain a court ruling on the government’s right of the public to know.

That wouldn’t be too different from a failed 2003 bill sponsored by Sen. Mary Bland, D-Kansas City, to create a bipartisan council with subpoena powers to monitor compliance with the Sunshine Law.

Another component could be to require that public records are regularly submitted to the MEC for preservation.

This may address an issue reported by the Tony Messenger of the St. Louis Post-Dispatch about the St. Louis prison records.

In his column, Tony wrote that he was notified that “the city has none of the monthly use-of-force reports from 2022 and routinely destroys video of use-force incidents.”

His column demonstrates that any constitutional amendment must have explicit requirements for retention, along with access to both government text and digital documents.

Given today’s technology for keeping and archiving digital records, it would be much easier than in the era of the Sunshine Law’s original advocates.

Perhaps every state and local government agency should be required to have independent staff responsible for delivering documents to MEC along with possible civil or criminal penalties for non-compliance.

There are legitimate privacy, law enforcement, and public safety concerns about unrestricted public access to some government documents. But Missouri’s Sunshine Law already has several exemptions for areas like health and student records.

The recent attempt by lawmakers to include an exemption for constituent communication to lawmakers raises a fascinating issue.

I understand the desire to avoid the public disclosure of personal data that a constituent might include in an email to a lawmaker.

On the other hand, a state news colleague once told me that access to those emails gave him contact information for authors to obtain information to make a story more effective.

Compounding the matter are emails to lawmakers from businesses, advocacy groups and lobbyists. Should these emails be confidential?

This is just one of the issues that need to be explored for a constitutional amendment to the Sunshine Law to be presented to voters.

Perhaps a bipartisan governing council similar to Bland’s bill could be a vehicle for reaching a compromise proposal.

Ultimately, letting Missouri voters decide on a constitutional amendment that establishes the public’s right to public records, meetings, and digital records seems to me to reflect the original vision of the sponsors of the Sunshine Law that I spoke about so many decades ago.

Phill Brooks has been a Missouri Statehouse reporter since 1970, making him dean of the Statehouse press corps. He is the state correspondent for KMOX Radio, director of MDN and emeritus faculty member of the Missouri School of Journalism. He covered all governors since the late Warren Hearnes.

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