Open Records Not So Open In Missouri, Kansas
In February, Michael Bushnell of Kansas City micro-news-paper the Northeast News started working on the story of a proposed city-wide daytime truancy curfew.
And as the matter unfolded, contacted the city attorney's office with a request under the Missouri Sunshine Law.
Bushnell says the result was a classic series of blind alleys and lengthy waits:
“The law department responded and said 'well, we're not the custodian of those records, you'll need to talk to the IT department because you want e-mail.' 'Okay, are you sure?' Yes, we're sure.” So early in April I sent an e-mail under the Missouri sunshine law, and I said I'm requesting these e-mails with respect to the truancy ordinance, that were sent by councilman John Sharp. And I never heard anything back, and I never heard anything back, and I never heard anything back, and I sent a subsequent e-mail, and I never heard anything back.”
Bushnell's story is not an unusual one. Open records are not fully “open” anywhere in Missouri, but ironically the National Freedom of Information Coalition is headquartered in the state.
Ken Bunting, executive director for that organization cites a recent nationwide study by the Center for Public Integrity that gives Missouri a C- for overall opennes and accountability and an F for access to public information.
A high-profile case during Governor Matt Blunt's administration involved e-mail messages. Before a media consortium finally got all of them, the governor's office had tried claiming they were unrecoverable or not covered by the Sunshine Law and attempting to charge $23,000 to release them.
Doug Anstaett of the Kansas Press Association says records in that state are also far from open. He mentions the Brownback administration's asking for $1700 for e-mails regarding meetings at the governor's mansion.
“The problem is that those records are public records,” says Anstaett. “[They] should have been turned over with much lest cost, you know, a hundred dollars or something for the time to look at them.”
And Anstaett notes that difficulty in accessing records is a non-partisan problem. He says one of the higher-profile cases before the Brownback situation involved Democratic Governor Kathleen Sebelius.
Nor is the problem confined to governors, the legislature and local governments. A recent Missouri case involved the Missouri National Guard refusing access to documents that may have contained information on looting that took place after the Joplin tornado.
When reporters or members of the public have difficulty getting the records, the only recourse can be expensive. Freedom of information advocate Bunting remarked, “If you are wrongfully denied access to a record, you can scream, you can beg, you can holler, and at the end of the day, you can sue. There's nothing in between.”
Bunting says he's flattered but not encouraged by the fact that the Missouri Attorney General's handbook lists him not someone in government, as the resource people should call if they have questions about Missouri's Sunshine Law.
If someone does call, Bunting may have to refer such a person to the Missouri Press Association's general counsel, Jean Maneke in Kansas City, who says taking it to court can be an expensive process. Maneke says legal fees can mount to as high as 70,000 or more.
“To File a Sunshine Law lawsuit is cost-prohibitive that unless you have a business behind you in some fashion, you simply can't afford to do it,” she says
If someone sues and wins, they may get the information sought, but the plaintiff is not likely get the attorney's fees paid. Fines for violators, when levied, are a maximum of $1,000 in Missouri, $500 in Kansas, and fines at the maximum level are extremely rare.
Also you the person suing for the records may not, according to Maneke and Bunting, due to some other facts of life about the laws.
Bunting summarizes it this way. “After you get past the flowery preamble, then comes the hundreds of exemptions, and then when you get past the hundreds of exemptions you have the crazy interpretations by the bureaucracy, and then you never know what the courts are going to do either.”
These experts all agree stiffer fines should be possible – maybe a category creating a criminal level of violation of the open records law. Only Florida has one. All agree with Attorney Jean Maneke who praises states that have a public records counsel to advocate for citizens and news organizations.
She explains that such a person might act as mediator and/or arbitrator. Having an advocate would give the public a less expensive method to resolve those kinds of disputes. “Right now private citizens almost can't afford to litigate,” she explains.
But Maneke allows that the creation of a public records counsel or ombudsman is unlikely at a time when state governments are reducing services, not expanding them.
From his office at MU-Columbia, national coalition director Ken Bunting says the answer begins with attitudes: “I wish there was a mindset attitude with respect to public officials that recognized that the records and instruments of government really don't belong to them. They really belong to the people they serve.”
As for neighborhood newspaper publisher Michael Bushnell, he contacted the office of John Sharp, the city councilman who sent the e-mails, and was told he can get them – after they are reviewed “to make sure they don't contain “confidential information.”
“It's moot, says Bushnell. “Don't need it anymore.”
That is because the deal is done. The city council passed a truancy ordinance before the process of getting the records was complete. It appears that in this case ordinance that passed in the meantime is satisfactory to most northeast Kansas City residents. Michael Bushnell says that is also moot.