Limits on Sunshine Law are Serious Blow to Transparency

February 11, 2019
Sandy Davidson is a professor at the Missouri School of Journalism and a Curators’ Teaching Professor at MU and is an attorney for the Missourian. Sandy Davidson is a professor at the Missouri School of Journalism and a Curators’ Teaching Professor at MU and is an attorney for the Missourian.

By Sandy Davidson

A proposed change in Missouri’s Sunshine Law, part of House Bill No. 445, is dreadful.

It could shut off the ability of journalists, who are performing a “watchdog function,” or of any other interested person to see what information our lawmakers are using when doing their deliberating.

The proposal would make communications between public officials at all levels of government and their constituents largely immune to records requests.

Mark Twain quipped, “Those that respect the law and love sausage should watch neither being made.” The proposed change would help alleviate Twain’s concern about our watching law being made. The proposal would throw a heavy, and potentially dirty, blanket over the lawmaking process.

The proposal would add to the list of records that can be closed from public view under Missouri Revised Statutes Section 610.021, which lists exemptions to the Sunshine Law.

This is the proposed exemption: “Any document or record, including electronic communications, received or prepared by or on behalf of a member of a public governmental body consisting of advice, opinions and recommendations in connection with the deliberative decision-making process of said body.”

So, information that the member of a “public governmental body” receives unsolicited could be shut off from public view under the “received” portion of the proposal. Or information that the legislator asks to be prepared could be shut off from public view under the language of “prepared by or on behalf of a member of a public governmental body.”

This proposal isn’t talking about advice on where to have lunch: “Hey, get the triple burger with jalapeños from Joe’s, and don’t forget a couple of cold beers, ’cause you’ll need ’em.”

This proposal is talking about “advice, opinions and recommendations in connection with the deliberative decision-making process” of a “public governmental body.” And it applies to any public governmental body — the General Assembly, the City Council, the University Board of Curators.

This is a radical change from current Missouri Sunshine Law, with its presumption of openness. It’s a departure from the principle of transparency in government. It’s indeed a departure from rationality. If one is interested, one should want all the relevant information he or she could get.

If the public can’t even find out what information or misinformation a governmental decision-maker has received, how can the public respond?

If the information is faulty, but the public doesn’t know the decision-maker has received it, how can the public respond and let the decision-maker know the facts? Or maybe it’s a matter of opinion, and the decision-maker really does need to hear other points of view.

Currently, requesters can find out what records a public governmental body is retaining. Section 610.010 (6) defines a “public record” as “any record, whether written or electronically stored, retained by or of any public governmental body including any report, survey, memorandum, or other document or study prepared for the public governmental body by a consultant or other professional service.” But the proposal allows closure of records “received or prepared by” the public governmental body.

The proposal also conflicts with the state’s current public policy that promotes openness, including openness of “deliberations of public governmental bodies.” Section 610.011.1 says: “Liberal construction of law to be public policy. — 1. It is the public policy of this state that meetings, records, votes, actions, and deliberations of public governmental bodies be open to the public unless otherwise provided by law.” And it says that the provisions of our Sunshine Law “shall be liberally construed and their exceptions strictly construed to promote this public policy.”

What possible benefit could that proposed law offer? The proposal promotes information siloing — decision-makers going to their own little silos, shut off from other viewpoints. It’s myopic. It’s the exact opposite of what a member of a public governmental body should want.

Let’s take this proposal’s logic down to the micro level. Say the Jones family — Mom, Dad and three kids — needs a new computer. Dad’s going to make the computer-buying decision. But he’s instituted, as part of the family bylaws, the proposed Missouri law, so no other family members know what information he’s received. The wife and kids can’t find out about “Any document or record, including electronic communications, received ... in connection with the deliberative decision-making process.”

Nope, the family can’t find out about that unsolicited email dad received from the ACME Computer Company that extols ACME’s virtues: “ACME: We provide all the information you need to see. Trust us. We’re professionals.”

The dad, John Jones, doesn’t find out from his kids that the ACME computers their school bought are nothing but CRAP — Computers Requiring Asinine Patience. They’re slow, and they keep sending messages that the programs aren’t responding so will have to shut down. And then the user has to restart, and then there’s a message about a backup document existing, and does the user want to rename it and ... . Yep, CRAP.

The dad announces to the family, “Be looking for a big box from Amazon. We’re getting a new ACME computer.”

The kids look shocked. The mom asks why the kids are upset and hears their answer. Then she replies, “John, how could you ... ?”

“Well, it’s part of our family bylaws ... .”

No, ignorance wasn’t bliss for John Jones. He could have benefited from his kids’ miserable experience with ACME at school. But they didn’t know about the email, so they didn’t tell him, and he made his decision based on faulty information. Poor John.

Honestly, who would want to be a legislator operating under the proposed Missouri law? How could the legislator be sure that he or she was receiving adequate, truthful information?

This law should perhaps be called the “willful-blinders proposal.” Legislator, just shut the public out from seeing the information you’re using to make your decisions. Wall yourself off from receiving information and then make your decision unimpeded by any countervailing information.

Same for you, city council person. Why should the rest of the neighborhood find out about the kind of misinformation you’ve been receiving from one disgruntled neighbor? It’s not neighborly to let other folks know what you’ve been hearing, right? There’s only so much room in the sand to stick your head, and you certainly don’t want overcrowding ... .

The problem is, you as the decision-maker aren’t the only one who then has to live by your decision.

This inane proposal is antithetical to what Missouri, the “Show-Me State,” stands for. The willful-blinders proposal would only be appropriate if Missouri wants to be the “Don’t-Show-Me State.”



Deadline
Chamber