The Forum

This past summer, newly elected Missouri Governor, Mike Kehoe, set legal precedent, further limiting citizens' access to public records in the state of Missouri. Among more than several bills signed into law on July 16th was House Bill 145, which established that agencies who receive public records requests can make advance payment mandatory for all tasks related to fulfilling the request. Agencies are now permitted to demand full payment up front of fees for searching, gathering, copying, and preparing requested documents before they even begin to locate the records that are being requested. Another change to the public records law allows the agency to consider the request automatically cancelled if the fees have not been paid within 90 days of the agency requesting payment. If the fees total more than $1000, the timeframe for advance payment extends to 150 days before the agency may consider the request closed. 

The new changes to the public records law took effect a few weeks ago on August 28. Additional changes included the closing of public access to records identifying young people under the age of 18, as well as prohibiting the release of the names for any court employees. The law now closes the names of judges, attorneys, court clerks and other court administrative personnel from being released to the public.  

Described as the "embodiment of Missouri's commitment to openness in government," Chapter 610 of the Revised Statutes of Missouri (RSMo) is most commonly known as the Missouri Sunshine Law. Enacted into law in 1973, the Missouri Sunshine Law was inspired by the federal Freedom of Information Act (FOIA) of 1967, which provided that records produced by the federal government were to be open to public access.  

Many federal and state laws establishing increased government transparency and granting public access to government records began to be enacted during the early 1970s just after the Watergate controversy. As public sentiment grew, federal and state laws increased across the country to deter executive abuse of power.  

Accordingly, the Missouri Sunshine Law established that all meetings, votes, deliberations, actions, and records of public governmental bodies are accessible to the public unless specific exemptions apply by law. Missouri Sunshine Law defines a public governmental body to include a broad spectrum of entities. The law’s definition incorporates executive and legislative branches of government, the judicial branch of government (if functioning in an administrative capacity), state committees and commissions appointed by the governor, political subdivisions, any legislative, administrative, or governmental entities created by state constitution, statute, order, or ordinance created by any political subdivision, district or executive order. This also includes institutions of higher education and any of their departments, divisions, councils, commissions, boards, bureaus and any other governing body of the institution that is supported in any way by state funds.  The Missouri Sunshine Law requires all public government bodies to either provide access to, or copies of, public records to anyone who requests.  

The Sunshine Law in Missouri does not require a reason for someone to be able to attend a meeting or request access to records. Foundation of the law is based on the presumption of openness, and the burden is placed on the governmental body seeking to withhold access to meetings or information, requiring that they must demonstrate that closure to the public is supported by a recognized exception.  

Sunshine Law mandates that the law “shall be liberally construed” and “exceptions strictly construed” in favor of openness and transparency to the public. Another significant feature of the Sunshine Law is that it applies to all forms of records, regardless of format or medium. Accordingly, most forms of documents are included whether stored in paper form or electronically/digital. Emails, text messages, social media content, photo images, slides, audio and video recordings and any other form of document created while doing the business of a public governmental body are applicable to Sunshine Law. Even documents that are under the control of a private contractor performing duties for a public governmental body are relevant to the Sunshine Law.  

The law defines meetings as any gathering at which a quorum of a governmental body discusses or decides the business of a governmental body. This includes remote meetings as well as informal meetings outside of the usual location or meeting place. Public governmental bodies are mandated to post notice of meetings with details of the upcoming meeting time, location, an agenda and information as to whether the meeting will be open or closed to the public.   

The Sunshine Law has consistently become a point of contention as the political landscape in Missouri has shifted over the years. In more recent decades the climate around government transparency has been most significantly determined by the political administration in control at the state capital. As a result, legislators in Jefferson City and across the state have often clashed with proponents of government transparency and advocates for public interests.  Historically policy makers throughout the state have avoided the law’s requirements, regularly excluding their activities and records from public scrutiny. However, in 2018, the passage of the Missouri Constitutional Amendment 1, the “Clean Missouri Initiative,” created major changes for Missouri legislators. This addition to the Sunshine Law required that all state lawmakers’ activities and records were subject to transparency provided by the law.  

Consequently, apprehension and efforts to provide for a balance between accountability and privacy have plagued multiple administrations over the years, culminating in what some have described as transparency wins and losses for the presumption of openness and public understanding of government functions in Missouri.    

Governor Kehoe's actions harken back to deeds reminiscent of another Mike, who, not too long ago also held the governor's office, former Governor Mike Parson. The actions of both current Governor Kehoe, and former Governor Parson, have caused concern for government transparency advocates throughout the state.  The two are not alone in their executive efforts to roll back or circumvent freedom of information in Missouri. Another former Missouri Governor, Eric Greitens and a former Missouri Attorney General have also been in close proximity to the controversy that seems to surround Missouri's laws granting citizens the right to attend public meetings and obtain access to public records. Former Attorney General Josh Hawley has also sparred with transparency advocates over interpretation of the state's Sunshine Law. 

Former Governor Mike Parson’s actions resulted in a historic and “game-changing” ruling in a 2021 case brought by attorney and advocate for government transparency Elad Gross. In a unanimous (6-0) ruling, the Supreme Court of Missouri found that then Governor Parson’s office had charged excessive fees, failed to respond to the records requests in a timely manner, and improperly redacted records. The court’s decision, seen as a significant win by transparency advocates, reinforced the spirit of openness foundational to the Sunshine Law and served as a landmark ruling against government entities erecting financial barriers to prevent citizens from gaining access to public information and records.    

Former Governor Eric Greitens faced severe legal scrutiny throughout his tenure in office from 2017 until his resignation in June of 2018. Greitens faced challenges due to a host of questionable actions, including his administration’s use of the self-destructing messaging app Confide. The messaging app, used by Greitens and members of his administration on their personal phones to engage in official communications, automatically erased text messages after they were read. If messages weren’t read, they vanished in 24 hours. The former governor and his administration were accused of obstructing public accountability, among other accusations, as deleted messages were not maintained in compliance with public records laws.   

During Senator Josh Hawley’s previous tenure as Missouri Attorney General, his office faced investigation and a lawsuit which led to the attorney general’s office being ordered to pay $12,000 in civil penalties. The 2022 ruling was the result of a 2019 lawsuit that found Attorney General Hawley’s office had improperly rejected a Sunshine Law request and failed to release documents. Subsequent investigative reporting by the Kansas City Star eventually uncovered that Hawley’s office had used private email accounts to conduct public business and were attempting to prevent the release of public records that would have negatively impacted his administration.    

As technology has advanced, many states have moved to expand the rights of citizens to access public records. Though many governments across the state of Missouri have in recent years begun proactively providing access to records through the use of accountability and transparency websites and portals, much of the information available is determined by policy makers and government personnel.  

While the Sunshine Law in Missouri was written to favor citizens in gaining access to records of government activities, a host of issues continues to plague the process. The recent changes signed into law by Governor Kehoe may prevent average citizens from being able to afford requesting documents, effectively shutting down the public’s abilities to hold elected officials and other policy makers accountable.  

For now, it seems Missouri citizens may exist in the space between the presumptions and ideals extolled in the Missouri Sunshine Law and the reality of increasing barriers faced by those who request access to public records. Thomas Jefferson said, “An informed citizenry is the only true repository of the public will.” This is the second installment in our series about citizens’ access to information. Stay informed and follow us as we explore more about federal and state government transparency in upcoming issues.