A government transparency advocate argued Friday that the Missouri House of Representatives is defying the will of the voters by withholding information from the public when responding to open records requests.
Whether the Missouri House has the authority to withhold information, including the addresses and phone numbers of constituents, was at the heart of a Friday hearing before Cole County Circuit Court Judge Jon Beetem.
The lawsuit stems from a rule the Missouri House adopted in the wake of voters passing a constitutional amendment, known as “Clean Missouri,” in Nov. 2018 that made lawmakers subject to the state’s Sunshine Law. Previously, some lawmakers had considered themselves exempt from open records laws.
The House responded in January 2019 by passing House Rule 127, which states that lawmakers may, “keep constituent case files, and records of the caucus of the majority or minority party of the house that contain caucus strategy, confidential.”
That rule was cited by the House as justification to redact email addresses, postal addresses and telephone numbers from records requested later that year by Mark Pedroli, founder of the Sunshine and Government Accountability Project.
Pedroli had filed records requests with lawmakers on behalf of his clients seeking emails in an attempt to find out if they were sent by outside parties posing as lawmakers’ constituents.
“This was a knowing, purposeful, defiant and political action,” Pedroli said Friday of the passage of the House rule, which he said was designed to defy the Sunshine Law provisions enacted under Clean Missouri.
Marc Ellinger, an attorney representing the Missouri House of Representatives, argued the rule the Missouri House enacted in 2019 was narrow in scope and justified.
“Everything that the General Assembly does under Rule 127 is generally publicly available upon request,” Ellinger said. “It’s a very narrow subset that is not available upon request, and that’s to protect this information, to protect these constituents.”
Ellinger pointed to authority granted under the Missouri Constitution that stipulates the House and Senate, “may determine the rules of its own proceedings, except as herein provided.”
Pedroli noted that the Missouri Constitution does provide an exception — the language passed under Clean Missouri that deemed legislative records subject to the Sunshine Law.
However, Ellinger argued that the House’s authority to pass its own rules was not in conflict with the language voters passed in 2018, arguing that “it leaves it as an open question, at best.”
“The rules stand sacrosanct, unless there is an express exception and saying an express exception is easily done,” Elinger said. “It was not done in this case.”
Beetem questioned, if the constitutional amendment voters passed had, “said ‘all records — and we really mean all records — including the names and addresses of people who correspond with their legislators,’ would that create a direct conflict?”
Ellinger said that would be much closer to creating a direct conflict, but ultimately argued that a clear conflict would have existed if the language voters passed expressly stipulated that “the legislative rules cannot conflict.”
Ellinger urged the courts to tread lightly regarding the general assembly’s powers. However, if Beetem does determine that the House rule is in conflict, then Ellinger argued that it should fall under exceptions built into the Sunshine Law, noting that Missouri Supreme Court rules are excluded from the state’s open records law.
Pedroli pushed back and argued that House Rule 127 is in conflict with the constitutional amendment voters passed, and therefore is unconstitutional and would need to be struck down — therefore eliminating any rule that could fall under Sunshine Law exceptions.
“If House Rule 127’s unconstitutional, what’s left?” Pedroli said.
What’s more, Pedroli noted that the courts have determined that constituent info, like contact information, has been construed as open to the public.
He cited an opinion Attorney General Eric Schmitt’s office sent to Gov. Mike Parson in 2019, which stated, “Missouri courts have repeatedly ordered disclosure of personal contact information in response to Sunshine Law requests.”
The attorney general’s letter ultimately said that the governor’s office should not rely on the First Amendment to redact personal contact information. It’s an area that lawmakers have long tried to exempt from open records law and one that Parson has identified as a priority for the 2022 legislative session that’s underway.
Other issues in the case raised Friday included whether Pedroli had standing as an aggrieved party, and whether Jean Evans, a former state lawmaker, should be dismissed as a defendant due to the fact she was no longer serving as a state representative at the time Pedroli had filed his records request to her.
While both sides urged Beetem to issue a summary judgment in their favor on the issue of constitutional authority, Pedroli asked that a partial summary judgment be issued on the count regarding Sunshine Law violations. If granted, Pedroli said he aims to take depositions to determine whether the House rule’s passage was a knowing and purposeful violation of the constitutional amendment voters passed.
Beetem took no action Friday afternoon.
This article by Tessa Weinberg is published by permission of The Missouri Independent.