A bill seeking to ensure that if a resident’s email address or telephone number was submitted to receive a government newsletter that it’s not used for other purposes has garnered bipartisan support.
But an unrelated provision, which was added as an amendment, is causing concerns for government transparency advocates who worry it could allow the legislature to essentially ignore records requests for months when the General Assembly is not in session.
House Bill 362, sponsored by Rep. Bruce DeGroot, R-Ellisville, would allow residents’ contact information to be closed under Missouri’s Sunshine Law if it was submitted to a government body solely to receive communication such as newsletters, notifications, advisories, alerts and periodic reports.
DeGroot said the bill came from Joe Garritano, the mayor pro tem of Wildwood, who raised issues about residents’ email addresses submitted for city updates being used for other purposes.
Garritano, who also serves as the vice president of the Missouri Municipal League, said in February 2019 residents’ email addresses “got into the wrong hands.” The issue was first raised when a city council member used email addresses from the city’s database without permission, according to West Newsmagazine.
“And so it breaks the trust of local government because people assume that they’re providing their information just for a newsletter, and all of a sudden now they’re getting all this junk mail,” Garritano said during a Senate Committee on Governmental Accountability and Fiscal Oversight hearing last week.
DeGroot said there was potential for such lists to be used for political purposes or businesses seeking to sell residents’ personal data.
While the bill has faced little opposition, one provision added by Rep. Tony Lovasco, R-O’Fallon, has raised concerns.
Under the Sunshine Law, government bodies must acknowledge receipt of a records request within three business days. Lovasco added an amendment to DeGroot’s bill that would allow officials to delay that notice if they had posted that they would be closed for an extended period of time at least 72 hours before receiving the request.
During debate on his amendment last month, Lovasco said it was needed after the pandemic caused sudden closures of government offices. But he also added, “this body itself actually has an extended interim every year in which we are not at full capacity.”
That raises red flags for Sunshine Law experts such as Jean Maneke, an attorney for the Missouri Press Association.
“It’s not reasonable for the public to be told that you can really only have access to records from the Missouri legislature during the four months that it’s in session,” Maneke said.
At the very least, Maneke said the provision should be restricted by a certain number of days.
Lovasco’s amendment is not needed, Maneke said, as the Sunshine Law already allowed for governmental bodies to delay the production of records if they provide a detailed explanation.
“This would basically eliminate that provision that they even have to respond,” Maneke said of the amendment.
Lovasco said the intent was to address physical requests that are mailed in — which are often checked less in the Legislature’s interim when staff are primarily working away from the Capitol, especially amid the pandemic. He said he’d be open to limiting the scope of the language to just mailed requests.
“And that would still require people to respond to electronic requests, which I’m inclined to think they’re going to do anyway,” Lovasco said. “But I could see some circumstance in which someone perhaps could abuse that.”
Another provision added last month onto DeGroot’s bill by Rep. Curtis Trent, R-Springfield, would also make individually identifiable customer usage and billing records from municipally-owned utilities exempt from disclosure.
Trent said the change, which is from a bill he is sponsoring that has also been sent to the Senate, is necessary to prevent sensitive information from being “commercially exploited’ by competitors.
Rep. Mark Ellebracht, a Democrat from Liberty, also added an amendment to the bill that would exempt from disclosure evacuation and lockdown procedures and plans from software or surveillance companies to secure access to buildings used by governmental bodies.
Ellebracht has filed a bill on the issue since 2018 — before security concerns at state legislatures came into focus following rioters breach of the U.S. Capitol earlier this year.
“The physical safety of the people in government shouldn’t be in question,” Ellebracht said.
DeGroot’s bill was amended in committee to ensure it’s narrowly tailored toward instances like mailing lists, and not exempting contents of constituents’ emails. But on a personal level, DeGroot said he thought it was important that residents could keep their personal data private.
“I don’t want to elevate my relationship to that of a patient-doctor, but it is kind of like that, isn’t it?” DeGroot said of communications with constituents. “To do a good job for them, I’ve got to fully understand their problem.”
It’s a position former Sen. Ed Emery, R-Lamar, took when sponsoring a bill in 2019 that would have allowed lawmakers to close certain records related to constituents or proposed legislation.
David Roland, the director of litigation for the Freedom Center of Missouri, a libertarian nonprofit that advocates for government transparency, said if you’re asking a government official to take action on your behalf, “then it is a small price to pay that the public be aware that you are making that request.”
For years, people’s phone numbers and addresses could be found in phone books, Roland said. What’s more, he said, adding more exceptions to the law may allow for more loopholes.
“Quite frankly, the more exceptions that you build into the Sunshine Law, the more government officials will try and exploit those exceptions,” Roland said, later adding: “Any expansion of the exceptions to the Sunshine Law, needs to be accompanied by a tightening up of the penalties for violating the Sunshine Law.”
The issue of whether constituents’ personal info in emails to lawmakers is exempt under the Sunshine Law is also the focus of a lawsuit against the Missouri House. Mark Pedroli, founder of the Sunshine and Government Accountability Project, filed a lawsuit in 2019 challenging a House rule that allows lawmakers to redact records or withhold them completely. The case is ongoing.
The issue also extends beyond just state lawmakers.
In 2019, State Auditor Nicole Galloway requested Attorney General Eric Schmitt review whether Gov. Mike Parson violated the Sunshine Law by citing the First Amendment numerous times to redact telephone numbers, addresses and email addresses of private citizens who reached out to the governor’s office.
Schmitt later said Parson should stop using the First Amendment to avoid disclosure of public records, noting that “Missouri courts have repeatedly ordered disclosure of personal contact information in response to Sunshine Law requests.”
Earlier this year, Cole County Circuit Court Judge Jon Beetem ruled that the governor’s office illegally withheld information documenting cell phone numbers of former Gov. Eric Greitens, and that the information is “without a question a public record.”
A few weeks later, in a move that shocked government transparency advocates, Beetem reversed his own ruling and said the phone numbers could be withheld. The lawsuit was filed by Pedroli, who is considering an appeal.
This article by Tessa Weinberg is published by permission of The Missouri Independent.