On the Trail: Lawsuit seeks to pull back curtain on Missouri legislators’ emails

Aug 2, 2017
Originally published on August 3, 2017 4:32 pm

Missouri lawmakers routinely have denied requests to make their emails available through open records requests. Now, a conservative nonprofit group is challenging the policy with a lawsuit that, should it succeed, will give the public more insight into how legislators make decisions.

Missouri Alliance for Freedom is a nonprofit organization that’s advocated against a statewide prescription drug monitoring program and for a right-to-work law. The group filed a lawsuit in mid-July against Sen. Rob Schaaf after the St. Joseph Republican denied the group’s Sunshine request.

Schaaf said lawmakers are exempt from the state’s open records law, but the Missouri Alliance for Freedom argued in court filings that emails stored on a taxpayer-funded server should be public record. While the group’s public records request sought Schaaf’s texts and instant message conversations, the lawsuit is seeking emails from Schaaf’s public and private accounts.

Schaaf has been critical of other political nonprofits, including A New Missouri that's run by Gov. Eric Greitens’ campaign staff, because the groups aren’t required to reveal their donors. He said the lawsuit may be retaliation for that stance, but, still, he doesn’t believe letting people see his email is a good idea.

“I have a certain amount of freedom to send and receive emails freely, without worrying about them being read by others. I have an expectation of privacy,” Schaaf told St. Louis Public Radio in a telephone interview. “And if that expectation of privacy goes away, then it’s going to inhibit ability to communicate freely — compared to not having that expectation.”

This is the first known suit over a lawmaker’s denial of records, according to Kansas City attorney Jean Maneke, who focuses on media law.

“I think it will have a major impact on how the Missouri legislators conduct their business if the court holds that emails that go through the body’s computer system are all public record,” she said. “It’s going to open up a lot of information that a lot of members of the public may want to take a look at.”

According to an Associated Press report from 2016, more than two-dozen states close off or substantially restrict from public records requests emails that lawmakers send and receive. Eighteen other states, including Florida, Oregon and Ohio, consider legislators’ email as public records.

The neighboring states of Illinois and Iowa have adopted language in their constitutions or state statutes that exempt lawmakers’ email from disclosure, University of Georgia journalism school dean Charles Davis said.

Missouri’s open records laws don’t specifically address whether legislators’ written or electronic records should be available to the public. But Davis, who previously was the executive director of the National Freedom of Information Coalition, said House and Senate attorneys have for years considered an individual representative or senator’s emails off limits from public records requests for more than a decade.

“Sometimes I think politicos can get really nervous about public records that show the depth and the scope of their relationship to regulated industries, to lobbyists, to special interest groups that kind of stuff,” Davis said. “But that’s just the sort of stuff where it’s really important that we understand.”

What’s next?

Cole County Circuit Judge Jon Beetem hasn’t set a court date for the lawsuit.

If the lawsuit succeeds, Maneke said she wouldn’t be surprised if lawmakers change the way they communicate, including using personal email or social media accounts to evade open records requests. (Missouri Alliance for Freedom’s lawsuit requests, among other things, that Schaaf hands over email forwarded from his official account to his private accounts.)

“It certainly impacts the actions of somebody who realizes that everything is now under public scrutiny,” Maneke said. “Just as simple as the language you use, your choice of words when you know the public reads something might be a lot more precise and a lot less casual than words that you use if you don’t think anybody going to see it except you and your recipient.”

Legislators also may try to exempt certain types of email, such as that from constituents or those that detail medical conditions, from public view — an approach Davis said a number of states, including Indiana, have adopted.

There’s a bit of irony to the fight over Schaaf’s emails: Opponents of revealing nonprofits’ donors say it opens people up to harassment. Schaaf has made a similar argument against making his email public record, pointing to the possibility that constituents could be vulnerable to retaliation.

“For example, you might have someone who had a problem with the Department of Revenue,” Schaaf said. “They write and complain about something — and the next thing you know, they’re being audited. And I can think of a hundred scenarios like that.”

He pushed legislation in the 2017 regular session that would have required that nonprofits identify donors who give more than $5,000, which he called a fair trade when it comes to showing whose money is influencing Missouri politics. Schaaf’s bill received a hearing, but not a full vote in the Senate.

And if the lawsuit falls flat, Missouri residents may still end up knowing what’s in lawmakers’ inboxes: An initiative petition known as “Clean Missouri” would make legislators’ email open records, though backers of the proposal have until May 2018 to collect enough signatures to put it to a statewide vote.

On the Trail, a weekly column, weaves together some of the intriguing threads from the world of Missouri politics.

Follow Jason on Twitter: @jrosenbaum

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