This is Sunshine Week, set aside each year to focus on open government and the public’s right to know about the conduct of public business (Getty Images).
When Missouri Attorney General Andrew Bailey took office in January 2023, he inherited a pile of more than 200 unfilled open records requests left over from his predecessor.
Some of the requests had been languishing for more than a year before Bailey took over.
It wasn’t a good look for the state official specifically empowered to enforce the Missouri Sunshine Law. To tackle the backlog, Bailey assigned new staff to the problem and implemented a policy to work through requests on a first-come, first-served basis.
It took more than two years, but in February Bailey finally could say he had cleared the backlog and was down to 75 recent requests still pending.
But Bailey’s office isn’t the only Missouri state agency where the public sometimes waits years to receive requested records.
This is Sunshine Week, set aside each year to focus on open government and the public’s right to know about the conduct of public business. To test state government compliance with the Sunshine Law, The Independent sent an identical request for logs showing pending requests to 26 state departments and divisions and the five statewide elected officials inaugurated in January.
The requests were sent in the third week of February. By Friday, every agency had provided its log — or reported that it did not maintain a formal log — except the departments of conservation, corrections and natural resources.
The state agency where the public faced the longest delays getting access to government records was the Missouri Department of Social Services.
The department received 988 records requests last year. As of last month, it had 54 still pending, including four from 2022 and five from 2023. Two of those longstanding requests were noted as “pending legal review” and seven as “time extension.”
Seven of the long-standing requests are from news reporters and two are from individuals. All sought records regarding child abuse investigations, including at least one looking for department records for the Agape Boarding School, the Stockton-based Christian residential that closed in January 2023 while under scrutiny for alleged abuse of its students over decades..
There is no reason records requests should drag on so long, said Echo Menges, president of the Missouri Sunshine Coalition.
Requesters should expect complex requests to take a reasonable amount of time, she said, but requests that linger unfilled for years smack of deliberate delays.
“They’re basically being stonewalled and withholding information,” said Menges, editor of the Edina Sentinel. “There’s no way to gently explain that.”
Dan Curry, legal adviser to the Missouri Press Association, said the public is entitled to ask for a specific date for producing records and specific reasons if the response is delayed.
“They should always make that request if they feel like they’re being slow walked or or stonewalled in any way,” Curry said. “Submit a written request demanding a detailed explanation, and the government body is required to provide a detailed explanation. A generic ‘we just need more time’ is not sufficient.”
Other findings from The Independent’s investigation:
- The Department of Transportation was the only other agency besides social services with pending requests received before Jan. 1, 2024. It had two, one from 2022 and another from 2023. There is no indication on the log provided of the nature of the records sought.
- The Missouri State Highway Patrol, which because of its work generates thousands of crash and arrest reports annually, provided a 968-page log of its requests for 2024 that contains approximately 30,000 entries. There were 171 open requests listed.
- There are 12 agencies that provide an online portal that requires registering an email address and creating a password to submit and retrieve records. The remaining agencies and officials handle requests through a dedicated email for the custodian of records.
The Department of Conservation, in an interim response, said to expect a copy of its Sunshine log by March 7. The department’s custodian of records did not respond to a message sent early last week seeking a reason for the delay and the date when the records would be available.
The Department of Corrections sent the same formulaic response to two requests, one sent to the department’s custodian of records and another sent to the Board of Probation and Parole.
“Due to the size of our agency and the volume of records we maintain, locating, reviewing and copying the records could take up to sixty working days,” the response stated. “Should we find that we will not be able to get the records to you within sixty working days, we will contact you again to tell you the reason for the delay.”
The Department of Natural Resources, in an interim response, said to expect a copy of its log by March 24. The department’s custodian of records did not respond to a message sent early last week seeking a reason for the delay and the date when the records would be available.
“It is like an A-minus to me, state government as a whole,” Menges said when asked to grade the quality of the responses. “Although graded on their own, natural resources still has some time, but conservation is an F.”
When a public agency misses the date it has set for fulfilling a request, or does not set a specific date in a response stating it cannot provide the records immediately, requesters should demand a specific date — and the specific reasons for the delay, said Dave Roland, litigation director of the Freedom Center of Missouri.
Under the Sunshine Law, every request “shall be acted upon as soon as possible” with a requirement that the records, or a reason why they cannot be provided immediately, by “the end of the third business day following the date the request is received.”
When responding to ask for reasons, Roland said requesters should incorporate the statutory language requiring “a detailed explanation of the cause for further delay and the place and earliest time and date that the record will be available for inspection.”
“Then you see what they say,” Roland said. “If they do not give an adequate explanation or an adequate estimate as to when they’re going to comply, then you can let them know, well, you’re at risk of violating the Sunshine Law.”
The Missouri Supreme Court, in a 2021 decision, ruled that then-Gov. Mike Parson’s office violated the Sunshine Law by giving an approximate number of days rather than a particular date when records would be available. That decision was also notable because it barred public agencies from charging for time spent by attorneys reviewing records before release.
Open government as a right
The public’s right to see government records is rooted in common law. The Sunshine Law, passed in 1973 to codify that right, wasn’t the first statute to do so. In 1961, the legislature passed a law imposing criminal penalties on officials who interfere with the right to inspect public records and protecting the public’s ability to make copies of those records.
Under the Sunshine Law, every public agency from the largest state department to the smallest water district must have a custodian of records responsible for providing access. There is no requirement that a requester state a reason for seeking the records and no requirement that the requester be a resident of Missouri or the place where a local agency has jurisdiction.
Agencies are not required to create new records in response to a request. And they are allowed to require payment for staff time needed to search for records and the costs of copying them. The costs are limited to no more than 10 cents per page for copying costs and by “using employees of the body that result in the lowest amount of charges for search, research, and duplication time.”
High charges for public records have been found to be a violation of the law. In 2020, Boone County Circuit Judge Jeff Harris ruled that the University of Missouri had sought an excessive amount when it demanded $82,000 for records of dogs used in research.
“The cost estimate in this case was tantamount to a denial of the request,” Harris wrote.
The general compliance by state agencies in their responses to a simple request isn’t surprising, Menges said, because as the largest and most complex organizations subject to the law, they should set the standard.
The most common violations, she said, are by local government agencies. Throughout Missouri, there are fire, hospital, water and other districts governed by part-time boards with members who have never been subject to the Sunshine Law before.
The attorney general’s office provides training, as do many state associations, but it is the responsibility of those board members to learn the law and make sure their agencies follow it, Menges said.
“On a local level, we have a huge education issue, which is people do not understand or know how to follow the Sunshine Law in public boards, public offices,” Menges said. “It’s rampant, especially in rural communities.”
Failure to follow the law can be costly. A lawsuit to enforce the Sunshine Law means large legal fees even if the government agency wins.
The Western District Court of Appeals is considering a case against the Western Cass Fire Protection District where a former board member accuses it of 46 violations at 11 different meetings. One of the meetings had an agenda item “special considerations” with no other explanation; the intent was to remove two board members.
The attorney general’s office filed a brief in the case, supporting the accusations that the district violated the law. Agenda items must be written to describe what will be discussed, Assistant Attorney General Jason Lewis wrote in the brief.
“That means that a public governmental body cannot hide an elephant in a mouse hole by using vague or excessively broad terms to hide what the body intends to do,” Lewis wrote. “The tentative agenda must be specific enough for the public to be able to make an informed decision about whether to attend the meeting.”
In tiny Edgar Springs in Phelps County, Roland represented Rebecca Varney in a case where she was banned from city hall because staff became annoyed at her visits seeking city records.
The city was found to have purposefully violated the Sunshine Law and ordered to pay $750 to Varney and almost $80,000 to Roland for his time. The city is appealing an order compelling it to turn over most of its available cash to pay the judgment, with interest accumulating since the 2023 ruling
“It really flows through not just publicly elected officials, but voters themselves,” Menges said. “It’s OK if you want to vote for someone who doesn’t care to follow the Sunshine Law, but what that case has shown us is you’re going to pay for it.”
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