Friday, March 22, 2013

State audit: House leaders claim Sunshine Law does not apply to them

It should come as no surprise that state legislators, like Congress, have a penchant for making laws that apply to everyone else, but not to themselves.

That is evident in a state audit of the Missouri House of Representatives released today.

The audit cites the House for not requiring individual members to maintain copies of e-mails:

The House has not established a formal written policy regarding the use and retention of e-mail correspondence. Currently, the House does not require email correspondence to be archived.

An e-mail policy needs to clearly define a record or specifically indicate that e-mail records are covered. While the legislature is exempted under Section 190.290, RSMo, and 15 CSR 30-45.010 from following the Secretary of State's Guidelines, Managing E-mail Records, the guidelines provide 
specific guidance regarding the definition of an electronic record and the need to retain such records. Without clear, specific, and adequate guidance, there may be inconsistencies in the understanding and implementation regarding records retention. Also, without archiving e-mail, either on the state or an in-house archiving system, the House has little assurance that applicable e-mail will be available if needed.

While it is the House's position that the Sunshine Law does not apply to records of individual members, the law related to this matter is ambiguous and no Missouri court has ruled on this specific issue. 
Section 610.010(4), RSMo, defines a "public governmental body", in part, as, any legislative, administrative or governmental entity created by the Missouri Constitution or statutes of the state. The Sunshine Law defines a "public record", in part, as, any record whether written or electronically 
stored, retained by or of any public governmental body including any report, memorandum, or other document. Section 610.025, RSMo, also provides that any message relating to public business by electronic means should be concurrently transmitted to either the member's public office computer or 
the custodian of records in the same format. 

The audit points out the hypocrisy of the House position:

It is a double standard for the legislature to impose additional requirements on other public governmental bodies while enjoying a blanket exemption from the Sunshine Law. The 
legislature should take this opportunity to bring individual members under the umbrella of the law while carving out legitimate and necessary exceptions to public disclosure. 

Judging from thre response, Speaker of the House Tim Jones and House leadership do not intend to do anything to bring transparency to their chamber:

The House of Representatives recognizes the expressed concerns and continues to follow the established statutory and case law on this matter.

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