Missouri’s Sunshine Law was enacted by the Missouri General Assembly in 1973. The intent of the law is noble, to make state and local governments accountable to their citizens. Any citizen can and should be allowed access to meetings and documents relating to governmental acts. However, since enactment, we have seen major advances in technology making compliance with some of these requests complicated. And expensive. Innovations like personal computers, cell phones, and the iCloud have made it all but impossible for state and local governments to comply with the Sunshine Law in an efficient, cost-effective, manner. In some cases, compliance actually hurts the very citizens the Sunshine Law was intended to protect.
It is time for the General Assembly to fix a few of the glaring issues state and local governmental bodies are presented with as a result of Sunshine requests.
A citizen or business owned by a citizen may now Sunshine request municipality email addresses solicited from the citizenry to keep them informed via a monthly report detailing local events and services. These email lists have then been used by candidates and local businesses to spam the emails of citizens whose only mistake was signing up for a monthly newsletter
In some municipalities, utilities are run by the municipality. One municipality reports that a valid Sunshine request may lead to an unfair business advantage to a business not located in an area governed by that municipality-owned utility when it directs such a request designed to solicit information about a competitor using a municipal-owned utility. Obviously, this information would not be subject to disclosure by a private utility such as Boone Electric.
Another area of concern is the current requirement that a government entity, or even school district, disclose sensitive information like evacuation routes or procedures in the event of an active shooter or other terrorist activity. Common sense dictates that this type of information must be shielded.
Another glaring difference from 1973 is the political environment. Supreme Court justice nominees were routinely approved by the Senate with broad bipartisan support. Former President Richard Nixon was impeached with votes from both sides of the aisle. Unfortunately, that dynamic is rarely demonstrated today. One of the weapons employed by the party not in power is the Sunshine Law. It can be used as a weapon to grind offices held by the party in control to a halt.
The current Sunshine Law allows a government entity to require upfront payment for the cost of producing documents responsive to a valid Sunshine request. This includes a reasonable charge for such things as a per-page cost as well as a charge for “staff time” in locating documents responsive to the request. Recently, in Gross v. Parson, the Missouri Supreme Court held that Gov. Mike Parson violated the Sunshine Law because he included the time spent by an attorney to determine whether a document was responsive to a Sunshine request as “staff time.”
Demonstrating the ambiguity, the Circuit Court of Cole County found no violation had occurred. The underlying confusion in the Governor’s Office as to which documents must be produced led to a bill totaling over $3,000. Pursuant to statute, this fee can be demanded prior to a single document being produced. Mr. Elad Gross, an attorney well-versed in Sunshine Law and a party to the above-mentioned Supreme Court case, recently told me that he agrees in part with my bill. In particular, he believes a bright line as to what documents are relevant should be established. I agree.
I have filed HB 2049 to address these issues. It was filed with good intent. I honestly believe that citizens should have the ability to peer into the inner workings of their government via requests allowed by the Sunshine Law. I also firmly believe the Sunshine Law in its current state is out of date and in need of review. Abuse on both sides is possible. Pursuant to current law, a request may be vastly overbroad and unduly burdensome. On the other side of the coin, a governmental entity may avoid production by employing a strategy designed to discourage valid Sunshine requests by claiming undue costs.
I look forward to having my bill fully vetted by the General Assembly realizing full well that many of its provisions may be altered.
Rep. Bruce DeGroot is a Republican who represents HD 101 in St. Louis County. A graduate of the Saint Louis University School of Law, DeGroot is the chairman of the Special Committee on Litigation Reform.