Capitol Perspectives: Improving the Sunshine Law
By Phill Brooks
The 50-year golden anniversary of Missouri's Sunshine Law has led me to reflect on what could be done to restore the vision of Missouri's original Sunshine Law sponsors.
Recent news stories and editorials of the St. Louis Post-Dispatch and the Kansas City Star concluded the Sunshine Law needs an "overhaul."
I could not agree more strongly.
Various actions by public officials have undermined the vision of the leaders of the 1973 legislative measure to make government records and meetings available to the public.
The Star's editorial cited the "exorbitant fees for copies of documents that are reviewed for months before release."
The Post-Dispatch cited examples of digital technology used by state officials to block public access to the public's business.
Digital methods that did not exist in 1973 now provide easy methods for evasion of the Sunshine Law as some state officials have used transmitting emails through a private mobile phone that leaves no government public record for disclosure.
There's even an app used to delete the message when read by the recipient.
I have several ideas to reinforce the vision of the original Sunshine Law sponsors.
My first suggestion would be to put the Sunshine Law into the state Constitution. That would protect it from legislative tampering without voter approval.
In addition, a constitutional amendment would cover the legislature itself.
That would address a recent state appeals court decision which effectively held that the Sunshine Law can not restrict the General Assembly's constitutional power to govern its own proceedings.
Another significant change I suggest would be to remove enforcement of Sunshine Law violations from the state attorney general.
That would address an obvious conflict of interest cited by various news accounts about allegations that former Attorney General Josh Hawley and his governmental staff used private mobile phones for sending messages that left no public record subject to disclosure.
A Kansas City Star editorial proposed Sunshine Law enforcement be placed in the hands of the Missouri Ethics Commission.
MEC has extensive experience enforcing campaign finance and lobbyist reporting requirements and putting that information online for anyone to see.
Having MEC review Sunshine Law complaints would avoid the expensive and time-consuming legal process now required to get a judicial ruling on the public's right to government information.
That would not be too different from an unsuccessful 2003 bill sponsored by Sen. Mary Bland, D-Kansas City, to create a bipartisan board with subpoena powers to monitor Sunshine Law compliance.
Another component could be to require public records regularly be submitted to MEC for preservation.
That might address a problem the St. Louis Post-Dispatch's Tony Messenger reported about St. Louis jail records.
In his column, Tony wrote he was informed that "the city doesn't have any of the monthly use-of-force reports from 2022, and regularly destroys videos of use-of-force incidents."
His column demonstrates that any constitutional amendment needs to have explicit requirements for preservation, along with access to both government text and digital records.
Given today's technology to preserve and store digital records, it would be far easier than in the era of the original Sunshine Law advocates.
Maybe every state and local government agency should be required to have an independent staffer responsible for turning over records to MEC along with possible civil or criminal penalties for failure to comply.
There are legitimate privacy, law enforcement and public safety concerns about unrestricted public access to some government records. But Missouri's Sunshine Law already provides for several exemptions for areas such as health and student records.
The recent effort by legislators to include an exemption for constituent communication to legislators raises a fascinating question.
I understand the desire to avoid public disclosure of personal details that a constituent might include in an email to a legislator.
On the other side, a statehouse reporting colleague once told me that access to those emails gave him information to contact the authors for information to make a news story more powerful.
Compounding the question are emails to legislators from businesses, advocacy groups and lobbyists. Should those emails be confidential?
This is just one of the issues that need to be explored for a Sunshine Law constitutional amendment submitted to the voters.
Maybe a bipartisan government board similar to Bland's bill could be a vehicle to achieving a compromise proposal.
Ultimately, letting Missouri voters decide upon a constitutional amendment establishing the public's right to public documents, meetings and digital records seems to me to reflect the original vision of the Sunshine Law sponsors I covered so many decades ago.
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