By Jason Hancock
A Cole County judge on Thursday heard arguments over whether staff in the Missouri attorney general’s office, while it was being run by now-U.S. Sen. Josh Hawley, used private email accounts in order to subvert the state’s open records laws.
A lawsuit filed in 2019 by the Democratic Senatorial Campaign Committee alleges Hawley’s office violated the Sunshine Law when it withheld emails between Hawley’s taxpayer-funded staff and his political consultants during the 2018 campaign for U.S. Senate.
The suit asks the court to impose civil penalties against the attorney general’s office for “knowingly and purposely” violating the Sunshine Law.
On Thursday, the Missouri attorney general’s office argued to Cole County Judge Jon Beetem that despite the fact that the emails pertained to public business, they should not be considered public records.
That’s because the conversations took place using private email accounts and were never stored on government servers.
“It’s not disputed that the emails were related to public business,” Jason Lewis, an assistant attorney general under Hawley’s successor, Eric Schmitt, argued Thursday. “But they are not public records. There was no retention here.”
The lawsuit stems from a records request the DSCC made in September 2017 for communications between staff in the attorney general’s office and Hawley’s political consultants.
Hawley’s office denied the request in a letter to the DSCC in October 2017, stating the office “searched our records and found no responsive records.”
But a year later, an investigation by The Kansas City Star revealed that communications did exist.
The Star reported in October 2018 that soon after he was sworn in as attorney general, Hawley and his staff began using private email rather than their government accounts to communicate with out-of-state political consultants who would go on to run Hawley’s U.S. Senate campaign.
Hawley’s campaign consultants gave direct guidance and tasks to his taxpayer-funded staff and led meetings during work hours in the state Supreme Court building, where the attorney general’s official office is located.
Among those included in the private email discussions was Daniel Hartman, who was the attorney general’s office’s custodian of records.
Hartman being involved in the conversations is significant, said John Geise, an attorney representing the DSCC.
“The attorney general’s office cannot defeat the Sunshine Law’s requirements by having the custodian of record storing some records on his personal email,” Geise said Thursday.
Geise argued Hawley withheld the records from DSCC because he didn’t want embarrassing information to become public before the election.
The revelation that Hawley and his staff were using private email to coordinate with his political consultants set off accusations that he had illegally used public resources to benefit his Senate campaign.
The Missouri auditor’s office concluded in February 2020 that Hawley may have misused state resources. But the audit stopped short of formally saying Hawley broke the law, saying widespread use of private email and text messaging in the office made it impossible to determine definitively.
The attorney general’s office didn’t officially retain the records, Lewis said, until December of 2018. That’s when Hartman printed them out and brought them into the office to scan them in order to turn them over to the Missouri secretary of state’s office, which was conducting an investigation into the matter.
Beetem raised the issue of retention several times to Geise Thursday, questioning whether emails about public business were automatically public records if they were never retained by the office.
It’s similar logic to Beetem’s 2019 decision in a lawsuit over former Gov. Eric Greitens’ use of a self-destructing text message app. He ruled in that case that since the texts were automatically deleted, and therefore never retained, there could not have been a violation of the Sunshine Law.
But Geise said Thursday that Hartman knew, or should have known, that responsive records existed. And because of his role in the office as custodian of records, Geise said, the fact that they were in his possession means they were retained.
If Beetem were to side with the attorney general’s office, Geuse argued, “government agencies would simply shift all communications to private email to avoid the Sunshine Law.”
Beetem took no action Thursday.
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