The common conclusion among those in Missouri who actually work with Missouri’s open records law is that it needs fixing, but not for the reasons that are being discussed. The Sunshine Law is found in Chapter 610 of Missouri of the Missouri Statutes. It deals with public access to government records and meetings.
The bulk of the Sunshine Law became effective on September 28, 1973. The world was very different then. Nixon was still the President and Watergate dominated the news. The vast majority of records were on paper. Email, cellular telephones, and video meetings were still far in the future in a practical sense. Even public access to a telephone conference meant going to a government office to listen in. While the Sunshine Law has been regularly amended over the years, it still retains its original DNA. Other than an attempt to add electronic records in the early 1990s, most amendments have been to open or close particular meetings or records.
The Sunshine Law deals with records as if they were all made of paper. Sure, the law now includes records held electronically, but it treats those as if they were just electronic versions of paper records. In other words, the Sunshine Law sees electronic records as if they were just a vast collection of PDF files. If you understand how computers work, you know that this isn’t the case. Consider a simple finance program. Suppose a citizen request all records showing how much was spent on park equipment last year. Could the program generate such a report? Sure. But that report does not yet exist and the Sunshine Law applies only to records that already exist at the time of the request. So the system can easily answer the citizen’s questions, but the Sunshine Law says they don’t have to. Not because the information is secret but because of the way it is stored.
The Sunshine Law also struggles when it comes to how people are charged. Here the law draws a distinction between physical records and electronic records. If in our example the city did have a report printed out on playground expenses, the requestor would pay ten cents per page for copies and the costs for the city to research what records are available. But for electronic records, there is a different calculation method. There is no charge for “copies” of electronic records. In the recent case Gross v. Parson, the Court of Appeals held that there was no research charge for electronic records. The Supreme Court overturned the Court of Appeals in general but did not reach the question of research cost for electronic records.
The Missouri Press Association has repeatedly argued that the Court of Appeals got it right. They believe that public records should be free. As the largest user of the Sunshine Law, media companies have a vested interest in making that come true. But, if Missouri Courts eventually get to the point of making electronic records free, the entire Sunshine Law becomes an unfunded mandate, and thus subject to being found unconstitutional under the Hancock Amendment. Be careful what you wish for. This is an issue that certainly could be fixed, but it won’t be. Both sides generally agree that public bodies should be able to charge their reasonable costs and that public bodies should not be able to inflate costs to the point of denying access. But the Press Association views any changes to the Sunshine Law as a threat. Public governmental organizations are equally reluctant to open up the law for fear of worse legislation creeping in. So everyone is comfortable with deadlock.
In 1973 there was not really a concept of identity theft. Personal privacy was largely a physical concept or at best protection from government intrusion. At the state and local levels there was not a tremendous amount of information kept about the everyday individual. But we live in a different world. Under the Sunshine Law, as it exists today, a pedophile could request the names and addresses of all of the girls on the 12 and under soccer team. He might even get team pictures. Its information that cities are likely to have and it is not protected. He would not even have to give his name. Ever wonder how a direct marketer got your address? Water billing records are public. Ever wonder why you are getting mailings about your recent accident? Companies routinely make mass requests for these records.
Most people are shocked when they find out that their personal information is so exposed. Yet the debate we are having now is only centered on whether constituent emails to legislators should be protected. That is the least of our problems. No effort is being made to protect personal information in the larger sense. There are a lot of parties out there who want this level of openness, regardless of the risks. So nothing gets done.
Another practical example concerns online information. Unlike the Missouri Courts, governmental bodies must produce records, even if the same information is online. Rather than encouraging governments to put information online, these antiquated rules actually discourage it.
Speaking for cities, we would welcome the opportunity to meet with the other stakeholders and work towards a better law. But the changes need to look at the whole structure, not just to slap some more patches on
Attorney with Lauber Municipal Law
