Openness to records is the chosen policy for Missouri

In these days of “fake news” and Russian hacking of social media, finding “truth” often seems a daunting task, but that’s what journalists aspire to do. The importance to our democratic society of seeking and publishing truth could not be overestimated.

Erosion of the ability of journalists to perform what has often been described as the “watchdog” function of the “fourth estate” (the press) is, in effect, an erosion of the ability of the citizens of our democratic society to receive information to enable them to fulfill their functions, including arguably their most important function of voting based on accurate information.

If information is inaccurate, then voters might well be basing their decisions in the ballot booth on inaccurate or incomplete information, speculation, conjecture or outright falsehoods.

Access to government records is often the key to unlocking the truth.

A major tool for journalists — or for anyone else wanting government records — is the Sunshine Law.

In Missouri, that law is contained primarily in Chapter 610 of the Missouri Revised Statutes. Sunshine Week starts nextMonday, although celebration of sunshine perhaps should be done every day of every week.

Missouri Sunshine Law is very favorable to requesters of government information. The presumption under the Sunshine Law is that records and meetings of public governmental bodies are open. Section 610.022.5 flatly states: “Public records shall be presumed to be open unless otherwise exempt pursuant to the provisions of this chapter.”

Furthermore, the Missouri legislature makes clear that openness is its chosen policy for Missouri and that the onus is thus on those who would shut records down to prove that a law permits such closure.

Section 610.011 says, “It is the public policy of this state that meetings, records, votes, actions, and deliberations of public governmental bodies be open to the public unless otherwise provided by law.”

Then the law spells out that “Except as otherwise provided by law, all public meetings of public governmental bodies shall be open to the public...” and, in addition, “all public records of public governmental bodies shall be open to the public for inspection and copying.”

In short, Missouri law presumes that government’s meetings and records are open, and it is the duty of whoever wants to shut the meetings or records down to prove that there is a law that permits the closure.

Section 610.021 authorizes closure of records or meetings under 23 categories. The first category involves “legal actions,” and governmental bodies do have a right to get legal advice under conditions of confidentiality. Many records involving privacy issues are also protected.

Perhaps one of the most nebulous exceptions to openness is No. 14 on the list— “Records which are protected from disclosure by law.” This, of course, begs the question of what constitutes “records ... protected from disclosure by law.”

The Missouri Court of Appeals for the Western District decided this question in 1996 in Pulitzer Publishing Company v. Missouri State Employees’ Retirement System, and the Missouri Supreme Court let this decision stand.

Here are the facts: The Pulitzer Publishing Co. wanted to inspect records concerning pensions paid to some former Missouri officials.

By law, those records were kept by the Missouri State Employees’ Retirement System, called “MOSERS,” and those records had to be kept open under Missouri law. But MOSERS passed a regulation that said that “the records of members of MOSERS are confidential.”

The Missouri Court of Appeals slapped MOSERS down hard, ruling that MOSERS “exceeded its authority..., and therefore, the regulation is invalid.” The court continued: “To hold otherwise would be to permit MOSERS or any other public governmental body to defeat the legislature’s declared public policy of open meetings and records merely by adopting a regulation designating the body’s meetings and records confidential.”

In short, “by law” means what Missouri’s legislature has declared, not what some other governmental body wants to invent on its own.

Besides Chapter 610, also Chapter 109 of the Missouri Revised Statutes, which covers “Public and Business Records,” demands openness.

Section §109.180 says: “Except as otherwise provided by law, all state, county and municipal records kept pursuant to statute or ordinance shall at all reasonable times be open for a personal inspection by any citizen of Missouri, and those in charge of the records shall not refuse the privilege to any citizen.”

Both Chapter 610 and Chapter 109 list penalties for governmental bodies that wrongfully deny requests for public information.

Section 610.027 spells out the following penalties: A requester who wins a Sunshine Law suit can recover the costs of the suit and “reasonable attorney fees.” Additionally, civil penalties against Sunshine Law violators are $1,000 for knowing violations and/or $5,000 for purposeful violations.

The possible repercussions for violators are potentially even more severe under Section 109.180: “Any official who violates the provisions of this section shall be subject to removal or impeachment and in addition shall be deemed guilty of a misdemeanor and upon conviction shall be punished by a fine not exceeding one hundred dollars, or by confinement in the county jail not exceeding ninety days, or by both the fine and the confinement ”

So Missouri lawmakers consider so egregious the breach of duty that occurs when records are withheld that the legislature says this breach is criminal behavior deserving of “removal or impeachment.” And the legislature even provides for possible jail time for up to 90 days.

Impeachment and jail time: Wow! That adds some potential teeth to the “Show Me” state’s “show me” law.

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Sandy Davidson, Ph.D., J.D., teaches communications law at the Missouri School of Journalism. She is a Curators’ Distinguished Teaching Professor and the attorney for the Columbia Missourian.