By Jason Hancock
The bill, sponsored by Republican Sen. Andrew Koenig of Manchester, would permit government agencies to withhold more information from the public by creating new exemptions to Missouri’s Sunshine Law to allow for a wider range of records to be closed.
For example, the bill closes any record of a lawmaker or their staff pertaining to “legislation or the legislative process,” except for those offered during a public meeting or involving a lobbyist.
“The Missouri Sunshine Law has been a great tool for citizens to be able to know how the government is acting and whether or not the government is following the law,” Koenig said. “However, there has been some abuses over the years that go beyond its original intent.”
The definition in the Sunshine Law of a public meeting — “all matters which relate in any way to the performance of the public governmental body’s functions or the conduct of its business” — would be deleted under Koenig’s bill.
Instead, a meeting of a governmental body will only be considered public if it includes deliberations about or action on official public business. Koenig said the change is to deal with a situation where, for example, a quorum of a public body is gathered without doing business, such as riding together in a car.
Jean Maneke, an attorney for the Missouri Press Association, worried that change would allow government bodies — city councils, school boards and others — to legally gather to discuss public business behind closed doors.
“To me, those words mean if you’re not taking the vote, you don’t have to give public notice,” she said. “That’s a huge change.”
The bill also closes records held by the government pertaining to a constituent, though lobbyists wouldn’t be covered under this provision. And it increases the time government agencies have to respond to an open records request, from three days to five.
Koenig said the changes are needed to protect constituent information, arguing that the Sunshine Law shouldn’t be “weaponized against constituents who wish to engage in communication with their elected officials.”
Among the information that could be withheld, for example, would be individually identifiable information of any person who registers for a recreational or social activity sponsored by a public governmental body.
Critics of Koenig’s bill argued Thursday that by weakening the protections of the Sunshine Law, lawmakers would be robbing Missourians of a tool they need to hold their government accountable.
“The public deserves to see how the sausage is made,” said Echo Menges, president of the Coalition and editor of the Edina Sentinel, later adding: “The Sunshine Law holds government accountable. If anything, it needs to be strengthened, whereas this bill weakens it considerably.”
In addition to giving government permission to withhold a new swath of previously public records, Koenig’s bill would also open the door for government agencies to charge more for any records they do turn over.
The Sunshine Law already permits governmental bodies to charge fees for research time and time staff spent to provide access to public records. Koenig’s bill would allow agencies to charge for time attorneys spend redacting records as well.
Such a change would reverse a 2021 Missouri Supreme Court ruling against Gov. Mike Parson.
Parson’s office had been routinely charging massive fees for public records, citing the need for attorneys to redact information as the main reason. The court determined attorney review time was not “research time” under the Sunshine Law and thus could not be charged.
The unanimous ruling followed a lawsuit that accused Parson of improperly redacting records, charging exorbitant fees and knowingly and purposely violating the state’s open records law.
After the ruling, the governor’s office began pushing for changes to the Sunshine Law.
“All these exorbitant attorneys fees were illegal,” Elad Gross, the attorney who sued Parson, testified on Thursday. “So the entire time I was litigating this case, those fees I was being charged to see these records and to have someone basically say you can’t see these records, that was an illegal charge.
A huge fee for public records, Gross said, can be a “massive barrier to public participation in government.”
Two other proposed changes to the Sunshine Law that raised alarms for transparency advocates have already been removed from the bill.
Koenig’s bill originally created a new type of exemption to the Sunshine Law for “transitory records,” which it defined as records that are not final documents or “do not have substantial administrative or operational value.” It also exempted inter-agency or intra-agency memoranda or letters from the Sunshine Law.
Both provisions have been eliminated from the newest version of the legislation.
The debate over public records comes on the 50th anniversary of Missouri enacting its Sunshine Law, which is designed to ensure the public has access to government records and meetings.
Pitching the bill to the Senate committee, Pat Kelly of the Municipal League of Metro St. Louis said one of its best provisions would protect citizens’ data when they sign up for things like community newsletters.
The Missouri Highway Patrol and Missouri School Board Association joined in support of Koenig’s legislation.
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