Sunshine in Missouri

I can never hear enough while I've got you near; Say those words again like you just did, oh baby Tell it to me once again

    My grandma used to tell me that it wasn't wise to point out another's faults because inevitably it just called even more attention to your own faults.  Well, that lesson might be something one public body in this state should take to heart.

    A newspaper called today to report the local city council was angered at them over something that ran in the paper.  The reporter had requested minutes of the last meeting, and when she got them, they included the minutes of both an open and a closed meeting.  The body's custodian gave her the minutes and she published them in the paper.  Now the council is angry at her for running those closed meeting minutes because she was disclosing something they didn't want local residents to know about.  They wanted to hold that discussion in private.

    Well, first I assured her that whenever a public body releases material to you, there's no reason for you to feel guilty about publishing it.  But, then, curious, I asked her what exception was used to close the meeting?  The minutes don't cite an exception, she said.  Uh, oh, I thought, violation No. 1.

    So, I questioned, just what did they discuss in this closed meeting?  They talked about awarding city grants to projects, she responded.

    Now, I see no reason to suppose those grants were being awarded on competitive bids.  I don't see any indication these were negotiated contracts or sealed proposals.  So, I am at a loss under what exception this city thought it had a right to have this discussion of where to award city grants in a closed meeting.  Just because "you don't want the public to know about" who is getting a city grant doesn't fall into any of the exceptions in my copy of Section 610.021.

    Perhaps it WOULD have been wise if the city had kept these closed meeting minutes closed.  Perhaps it might be wise not to publicly advertise you've blatantly broken the sunshine law.

    A litle sunshine can be a good thing, sometimes....

Just as sure as I'm sure there's a heaven, This was meant to be. No road is too long, As long as you belong to me.

    I know the sunshine law gets violated daily.  That's a given.  But what always gives me a chuckle is when the public body violating the law is obtuse enough to document their violation in their own minutes.

    For example, a newspaper recently requested a copy of the draft budget for the coming year from a city.  The city responded (the very next day, practically) by saying that they couldn't provide a copy of the draft budget because it was a draft and hadn't been approved by the council.

    Now, there's case law that would lead any attorney of a public body to conclude that courts have established that draft records are still "records" for sunshine law disclosure purposes.  But for the non-lawyers out there, even the Attorney General's sunshine law handbook (which is available online at the AG's website) recognizes this in its Q and A section, where it says:

Do minutes retained in "draft" form have to be provided to the public within three business days of the request?

Yes. A draft of minutes is a "public record" under Section 610.010 (6) and must be provided as soon as possible and no later than the end of the third business day after the request is received (Section 610.023.3). A public body that provides draft minutes should inform the requestor that the minutes are in draft form and will not be "official" until approved at the next regularly scheduled meeting of that public body.

    Okay, that's pretty basic.  Here's the joke:  The public body puts in its minutes of the  meeting where the budget is approved that it withheld the draft budget from the newspaper until it was approved.  Thank you very much.  Pretty obvious it was a knowing violation.  They knew what they were doing, for sure.  It's wasn't an accident that they withheld turning over the draft budget.  Not, clearly it was so intentional that they put it in their minutes.

    Violation? It's right there in black and white.  And read all over.  And so should their faces be (red), when they realize how blatantly they've broken the law.

   

   

Maybe I can give out a thousand reasons why...

    One of my favorite papers in the state called today to tell me their city was recently involved in a legal dispute with a local resident.  The city turned it over to their insurance company which had settled the matter.  The paper requested the settlement information and the city's attorney declined to provide it.  Issues of privacy, confidentiality, he said.  The city didn't have access to the information on the settlement (yeah, right).  It was the insurance company's actions, not the city's, he said.

    A thousand excuses.  None of them any good.  This attorney needs to read the statute on closure involving litigation matters, where it clearly says "However, any ... settlement agreement relating to ... causes of action... involvintg a public governmental body or any agent or entity representing its interest or acting on its behalf or with its authority, including any insurance company acting on behalf of a public government body as its insured, shall be made public upon final disposition of the matter voted upon or upon the signing by the parties of the settlement agreement...."  It's right there in the statute.  Lawyers generally know how to read statutes.  At least, the good ones do....

    A thousand reasons why public bodies try to keep information secret.  One reason they shouldn't -- it's the taxpayer's dollars that are involved.  It's a good thing we have Unterrified papers in this state to keep these public bodies toeing the line!

Makin' a list. Checkin' it twice. Gonna' find out who's naughty and nice...

ANNOUNCING ...

THE LATEST MEMBERS OF THE SUNSHINE LAW HALL OF SHAME

Charles Barker

Donna Sue Ashcraft-Fincher

    Both held  by a Madison County, Missouri, jury of their peers to have knowingly violated the Sunshine Law on April 17, 2007, while members of the Twin Rivers School Board.  Both fined.

    (Well, perhaps it wasn't a jury of their peers.  The jury at least recognized a knowing violation of the law.  They didn't.)

1 2 3 4 5 6 7 I never learned to count a great amount But my busy mind is burning to use What learning I've got

    There's lots of reasons you can argue why people make stupid mistakes.  They forget.  They just didn't think.  But when you are a member of a board of aldermen, and you have dozens, maybe even hundreds (to hear certain municipal organizations talk about it) of opportunities to receive training in the sunshine law, how can stupid mistakes happen?  Tom Durkin is putting thousands of miles on a car this year going around the state doing training for the Attorney General's office.  By this time, he's probably been in your county.  Did you not go?  What excuse could someone possibly have?

    Still, yesterday a reporter called.  His board of aldermen recently held a closed meeting after an open meeting.  nothing wrong with that, assuming it was properly noticed.  The problem is that AFTER the closed meeting, then came back out into open session.  There was no notice that additional open meeting matters would be taken up after the closed meeting on the agenda.

    Oh, but there's more!  Those additional items they discussed at the newly-reopened meeting?  None of them were properly identified in the minutes as emergency items which would have allowed a violation of the notice requirement of the law.  It didn't appear, to this reporter, like any of them were items that couldn't have waited until a proper notice was prepared, or couldn't have been foreseen as items that needed to go on the meeting agenda.

    Clearly a violation of the sunshine law, it appears.

    Actually, there's even more, but it's not a sunshine law violation -- one of the items was a motion to adjust the water bill of one of the aldermen -- to reduce it.  Guess who added a vote to the tally?  Yep, the alderman whose bill was being adjusted.

    Nope, that's sure not a sunshine law violation.  I don't deal with Ethics violations.  I leave that to others at the state level.  But I'd say a city like this is in dire need of some one-on-one training about a lot of issues.  Where in the world do you start with folks like this?

    Some of these principals, folks, are just common sense items.  You don't need a college education to understand the sunshine law.  The book published by the Attorney General's office is simple enough to understand, if you would just crack the cover!

You think that I don't even mean A single word I say It's only words And words are all I have

    After having given three interviews already on the report by Attorney General Chris Koster on his investigation of a potential sunshine law violation within the Department of Natural Resources over the release of the May E.coli report for the Lake of the Ozarks area, I've finally had a chance to read the report for myself.

    Readers, if there's a lesson to be learned from this experience, it's that it is critical to indicate to whomever your request is going to that it is a Sunshine Law request.  The sample form in the booklet published by the AG's office begins by saying "This is a request for records under the Missouri Sunshine law, Chapter 610, Revised Statutes of Missouri."  There's probably no reason for you to be creative... the form works just fine.

    This language is critical because of the holding of the Western District Court of Appeals in 2003 in the case of Anderson v. Village of Jacksonville.  There, the court  held that the statute does not specifically require that the request be in writing, but the statute does require that the communication express a request for access to a public record, among other things.

    I cannot say the report written by Ted Bruce, whose knowledge of the sunshine law is solid, is wrong.  Based upon what he was told, I cannot dispute that "No individual or organization made a request for information that was intended as, or should have been interpreted by DNR as, a Sunshine Law request," if one looks at the statements he received in response to his investigation.

    However, I believe perhaps some of those responders might have benefited from the advice of counsel.  I suspect some may have thought Mr. Bruce was asking if the request had been put in writing, as opposed to being an oral request.  Or perhaps they failed to point out that they had been engaged in discussions for many many years with their contacts within the department, who understood that EVERY request being made was a Sunshine Law request, but due to the familiarity of the parties, was being made orally rather than formally in writing.

    The Sunshine Law doesn't require requests to be in writing -- that's been understood for a long time.  After a while, when you and I communicate on a regular basis, particularly when it is oral rather than written, we all drift from the formalities.  When reporters walk into the police station and ask to see the arrest log for the last 24 hours, how many say to the staff, "This is a request under the sunshine law for access to your arrest log?"  Probably none.  It is just understood.

    I suspect this is the case with some of the media contacts that are documented in Mr. Bruce's report.  Perhaps some assistance of counsel might have caused the media to more clearly explain these relationships to him and perhaps his conclusions might have been different because he was looking at a different set of facts.

    Alas, based upon what he has placed on paper, the conclusions are made and the report is written.

    And so, ladies and gents, take one lesson from this E.coli-y report...sure, it's fine to make your Sunshine Law requests orally rather than on paper.  Just don't forget to invoke your Sunshine Law as the first words out of your mouth in doing so.  Repeat after me: "Hail Sunshine law, full of grace, please send me those reports as soon as possible."

    And always consult with counsel before making a statement to a governmental official!

Spending my vacation in the summer sun, It's bye, bye fun, get your homework done. I gotta go back, back, back to school again...

    A group of members of a school board in the state has decided they can save time at meetings by holding discussions of school board business in between meetings by e-mail.  Apparently, board members are e-mailing among themselves about matters, both open and closed, and copying the custodian of records for the board with these messages on a regular basis.  The custodian of records told a reporter the other day she couldn't begin to give the paper copies of these e-mails, in response to a sunshine law request, because there were so many of them and it would take far too long to sort through all them to determine which were closed documents and which were open records.

    Ah, where do I begin with a mess like this?  Sure, section 610.025 allows members of a public body to communicate about public business by "electronic means" which one assumes includes e-mails, so long as a copy is provided to the custodian of records.  Clearly, the custodian of records has an obligation to provide those in response to a sunshine law request, because that same statute says they are public records.  And it is never an excuse that there are so many public records that the custodian cannot sort through them to meet that person's duty to response to a request for access to records.  Taking that kind of a position is clearly a violation of the law for the custodian of records.

    But can a public body meet via e-mail and never physically hold a meeting?  I don't think so.  Indeed, a meeting is "any meeting of a ... body ... at which public business is discussed... whether such meeting is conducted in person or by means of communication equipment ...."  (Section 610.010 (5).)

    Was it the intent of the Missouri legislature to say that public bodies could hold discussions of public business by e-mail and avoid thereby holding public meetings so long as copies were provided to the custodian of records?  Section 610.020 talks about giving the public notice of meetings to be held by "Internet chat" and how that requires notice to the public.  Clearly, there is no notice of these discussions to the public.  And when you go back to the very foundation of the sunshine law, it is clear in Section 610.011 that "deliberations of public governmental bodies be open to the public...."  It's pretty hard to be open to the public when the public has to go retrieve your e-mails to know about your deliberations and then is told that it's too hard for the custodian to sort these e-mails out to provide them in response to a sunshine law request.

    I think this school board needs to go back for a little sunshine law education!  And class can't start soon enough!

Tell me what has become of my rights Am I invisible because you ignore me?

    This is #100, a milestone post in a weblog started over three years ago.  That's a long time to be writing about a subject on a sporadic basis.  i started it to give us fodder for legislators who said there really was not an issue with sunshine law violations.  I think we've gotten the attention of some of them.  We've seen the formation of the Missouri Sunshine Coalition since then.  And late last week, Attorney General Chris Koster added teeth to his pledge to take sunshine law violations seriously by filing his first lawsuit over a violation, citing the Northeast Ambulance and Fire Protection District for passing a resolution banning certain members of the public from public meetings and for failing to produce public records in a timely fashion to a request from the State Auditor.

    (Frankly, the first part of the lawsuit strikes me as no different than a million other stupid stunts public bodies do in violation of the sunshine law.  Don't think that this is an isolated action.  Read the archives and you'll find dozens of other violations equally as offensive.)

    The lawsuit seeks for the court to find a knowing and/or purposeful violation.  It'll be interesting to watch this play out.  We have yet to have an opinion defining a knowing violation.  Having one would be great, seeing as how the Missouri legislature failed to include that when it drafted that part of the law.

    Meanwhile, friends at another association in the state, which is primarily funded by your tax dollars which are then redirected there by your local public bodies, is busy trying to put out the fires caused by a public interest group pointing out that your tax dollars are being used to fight a ballot issue which was placed there by your signatures on petitions.  Not so, the association claims, but I haven't seen a clear explanation to its members about where the dollars DID come from if they didn't come from the association's budget.  Perhaps the funds did come from elsewhere, but perhaps it might be wise for the association to clarify that issue, if they want to help the public understand that they are not using public dollars to frustrate the public's wishes.  Otherwise, it sure looks like it to me.

    I'm not particularly a Michael Jackson fan .. as a family member says, "I'm over it."  (Was over it about a week ago already, folks!)  But in his own words, "All I wanna say is that They don't really care about us...."

   

You give me hope to carry on. And you try to show your love for me in everything you do.

    Just a quick heads up to readers in southwest Missouri:  The Missouri Sunshine Coalition is planning a get-acquainted meeting in Springfield on Thursday, June 25, from 5-7 on the Drury University campus.

    The meeting will be held at Reed Auditorium, Trustee Science Center at Drury.  Registration and refreshments begin at 5, and the program begins at 5:30.  The coalition will discuss the results of a sunshine audit of several Missouri towns in this region, and the response from local government to a simple request for the budget.  Paul McMasters, noted National Freedom of Information Act expert and a former executive director of the Freedom Forum will attend to talk about the importance of access laws.  A representative from Attorney General Chris Koster's office has been invited to attend.

    I hope you'll be able to come.  I'm really looking forward to being there.  Tell your local public officials about the meeting and invite them!  Come support this organization's efforts to strengthen the understanding of this law in the state. We'll welcome your membership in the coalition!

You gotta know I'd be a fool not to see ...Cause everyone that sees you Always wants to know you And everyone that knows you Always has a smile

    So it's budget time in a rural school district in the state.  The board is considering a prospective budget.  They hold an open meeting, but no one attends (not unusual in rural school districts), and then, after that meeting, before the next meeting at which the budget will come up for final approval, a reporter in a nearby larger town calls to request a copy of the proposed school district budget.  She wants to use it for a story prior to the meeting where it is finalized, so that the community members who weren't able to be at the meeting can know what's happening before it's too late to object.

    What response would you guess she gets?  Does the district custodian of records send her the copy of the budget without objecting to her request?  Of course not.  Nope, they tell her it's not a public records because it's not finalized.  So she can't have it.  She goes back and tells them that her attorney says it's a draft record, but it's a public record nonetheless and to cough it up.  But do they?  Of course not.  They tell her they don't intend to give it to her until it's been approved by the board.

    This story makes me laugh, because it's just one more time that it is driven home to me how important the word "retained" is in the law.  If the record is "retained" by the body, it doesn't matter whether it's been approved by the board or not.  It's a public record just because it's retained by the custodian of records of the body.  What always makes me laugh is the definition of this word used in the Hemeyer v. KRCG case which I litigated.  I knew when we hit the Missouri Supreme Court that this was the key word for that case and the definition I used in my brief, in this case from the late 1990s, came from a Webster's Dictionary in my office dated about the time I graduated from high school  (No dates mentioned here, folks!).  The fact that the Court used my definition in its decision so embarassed me I went out and bought myself a more current dictionary in the office so I'd never be using 20-some year old dictionary for such purposes in the future.

    But I digress.  This may be a stupid story, but it's light years smarter than the folks in this district who don't get that when the law says a record is public if it's "retained" that just having it in the hot little hands of their custodian of records is enough for them to clearly be violating the law.

    The public wants to see this draft record, folks.  Turn it over!