Changes to Missouri Sunshine Law could be barriers to records, advocates say

By Rudi Keller

Missouri Independent

A Missouri bill closing records with personal information about young people and state court personnel includes provisions that could help governments hide records intended to be public, open government advocates said Monday.

Gov. Mike Kehoe signed the bill Monday, along with 11 other measures, as he finished work on legislation passed this year by state lawmakers. He signed all 48 statutory bills presented to him, using his veto only to reduce or eliminate individual line items in the state budget.

Lawmakers will consider whether to override the budget cuts when they meet Sept. 10 in the annual veto session.

The other bills signed Monday include legislation that would provide new support for the Missouri Sheriffs Retirement Fund, allow organizations like the Missouri Farm Bureau to offer health plans that are exempt from federal rules, and limit any attempt to tap Missouri’s water resources for export to dry states.

“Agriculture and rural communities are the backbone of Missouri,” Kehoe said in a news release after signing the bills. “By expanding health care access and protecting our water resources for future generations, these bills ensure that the families who feed, fuel, and clothe this state have the support they need to keep doing what they do best.”

The other bills remaining on his desk represent “common-sense legislation…that will positively impact Missouri families and communities,” Kehoe said.

The bill closing records containing personal information applies to material about persons age 17 or under, court personnel including circuit clerks and prosecutors, their staff and court administrative personnel.

The provision causing concern, however, is a change in how the public pays fees for open records requests, and how long those requests can remain pending, under the Sunshine Law.

Currently, government agencies can require that fees for copying records must be paid before copies are delivered. Under the bill signed by Kehoe, government agencies may require that all fees, for searching, retrieving and copying records, be paid before the request is fulfilled.

The bill would also cancel records requests when required fees are not paid within 90 days, with an allowance of 150 days for requests where fees exceed $1,000.

The change may be insignificant or it may create a new barrier to obtaining records, said David Roland, director of the Freedom Center of Missouri.

Government agencies are allowed to charge fees to search for, retrieve and copy records to fulfill requests under the Sunshine Law. The search and retrieval is supposed to be charged as an hourly rate equal to the lowest-paid personnel capable of doing the work, with copying fees limited to no more than 10 cents per paper page for physical records or the cost of electronic media for records delivered digitally.

Inflated fees are the equivalent of a denial, a Boone County judge ruled in 2019 when the University of Missouri demanded more than $82,000 for records about dogs used in research. And the fees cannot include attorney time required to separate open from closed portions, the Missouri Supreme Court ruled in 2021.

The new language could result in inflated fee demands that must be paid before an agency even begins searching for responsive records, Roland said.

“This fee shenanigan is the latest front line in government entities that don’t want to produce records,” Roland said.

A person requesting records can ask for a detailed statement of fees and change the request to lower the cost, but it is difficult to challenge the estimate as a whole, he said.

“There is no real way for the citizen to contest the amount if the government says that is what it is going to take,” Roland said.

The legislation, as a whole, is another attempt to limit the public’s access to government records, said Echo Menges, president of the Missouri Sunshine Coalition.

She said she hadn’t seen a full analysis of the bill yet.

“I hesitate on anything that limits the Sunshine Law in any way,” she said. “The Sunshine Law ought to be gaining ground, not losing ground.”

She questions the need to limit public access to records about court personnel or juveniles.

“Are there real life situations,” Menges said, “or is this just more of what we have seen in the past, which is making up stuff that has never happened to push back on people’s right to know.”

Sheriffs retirement

Over the past two years, Missouri lawmakers have spent $12 million of state general revenue to shore up the finances of the Missouri Sheriffs Retirement System, which provides pensions to former elected sheriffs.

The funding — $10 million last year and $2 million this year — was needed to replace money from a court fee on criminal cases found unconstitutional by the Missouri Supreme Court as a barrier to citizens to access the courts.

Lawmakers tried to reinstate the fee but voters rejected that proposal by a 61% majority in November.

The bill signed by Kehoe would increase the fee for sheriffs to serve papers in a civil case and dedicate $1.75 off the daily amount the state pays for housing prisoners convicted of felonies and sentenced to a term in a state prison. The state pays counties $24.95 a day.

Sheriffs, who are paid from $70,300 to $174,116 annually, depending on their counties, contribute 5% of their pay to the fund.

State Sen. Rusty Black, a Chillicothe Republican who handled the bill in the upper chamber, said during debate that the bill will make the system stable for at least 20 years.

Farm Bureau health plans

After three years of trying, backers of the Missouri Farm Bureau pushed through a bill allowing it to offer health plans that don’t abide by the protections set by the Affordable Care Act. As a result, the Farm Bureau would be able to offer lower-price coverage options, which the organization and its supporters say is necessary to help uninsured farmers.

Kehoe visited the Farm Bureau headquarters in Jefferson City to sign the bill.

Opponents added provisions mandating a clear disclaimer that the coverage is not officially regulated as health insurance, mandating the company can’t cancel coverage for members because of a medical event and ensuring the state insurance department will handle complaints.

The bill contains a wide swath of other health measures, including several added by Democrats during negotiations.

Those include: provisions mandating that Missouri Medicaid cover hearing aids and cochlear implants for adults, expanding access to testing and treatment for sexually transmitted infections, requiring insurance companies that provide birth control medication to provide extended supplies and tweaking the law around telehealth to allow audio-only visits.

Water exports

On Monday afternoon, water in the Missouri River at Boonville was flowing at a rate of 62,600 feet per second, enough to fill an Olympic-sized swimming pool in a little over one second.

Across the country, at the Colorado-Utah border, the Colorado River was running at about 2,700 feet per second. Lake Mead and Lake Powell, the two largest water reservoirs in the United States, have both fallen this year as a scanty snowpack aggravated water woes in the West.

Under legislation Kehoe signed Monday, that Missouri River water — and every other source of water — would be off-limits to most large-scale uses outside the state. Water exports would require a permit and no large-scale water exports would be allowed outside of a region within 30 miles of the state’s borders.

Water bottled for human consumption would be exempt from the requirement.

Water-scarce states “are turning a thirsty eye to Missouri and other Midwestern states that are water rich in order to get some of that water and move it,” state Rep. Colin Wellenkamp, a Republican from St. Charles, said during House debate in May. “That is a very real threat that this bill attempts to mitigate.”