Newspaper's Sunshine Law requests denied due to litigation

Tuesday, May 6, 2008
FRED LYNCH ~ flynch@semissourian.com Cape Girardeau County Prosecuting Attorney Morley Swingle addressed the Cape Girardeau County Commission Monday, May 5.

Cape Girardeau County will not provide any material requested in two Sunshine Law requests from the Southeast Missourian because much of the material relates to possible lawsuits, Prosecuting Attorney Morley Swingle said Monday.

As part of the denial, Swingle declined also to release the names, rates of pay or reasons for hiring outside counsel for any litigation or providing legal advice. In declining that part of the request, Swingle wrote to the Southeast Missourian that it could jeopardize the attorneys' work product, information that is protected from disclosure by law.

The names and amounts the attorneys are paid will become public after their work is concluded, he said.

But a lawyer who advises the Missouri Press Association on the Missouri Open Meetings and Records Law, the official title of the Sunshine Law, said the names of lawyers under contract or on retainer are public records.

"That is open, absolutely," lawyer Jean Maneke said.

The Southeast Missourian made its first request for records April 25 as an article was being prepared about a closed meeting of the Cape Girardeau County Commission that dealt with attempts to discipline County Auditor David Ludwig. In the meeting, commissioners considered suspending Ludwig and, at one point, Ludwig was asked to resign. His attorney, Albert Lowes, has said the meeting dealt with Ludwig's accessing photos of actress Pamela Anderson on the Internet.

In the Sunshine Law request, the Southeast Missourian asked the county for records of Web sites visited from Ludwig's computer, any information about computer policy violations and any documents previously signed by Ludwig regarding his computer use. In a request sent Monday, the Southeast Missourian renewed those requests, and added the request for attorney names and information about complaints of rights violations.

In an interview Monday morning, Swingle said he was advising the county to deny the requests because it related to a personnel matter. "Everything is related to litigation," Swingle said. "There is not a personnel matter that is not related to potential litigation."

In a letter addressing the Monday request, Swingle said he will, "as soon as possible," check to see if any of the requested material contains public information that can be separated from the material that the county may keep private.

And as far as the other material, Swingle noted that he expects much of it to become public at some point. "But this won't be until the County Commission has taken a vote about how to handle the potential litigation or otherwise decides to handle these matters in public rather than in private."

The commission, which has no power under law to discipline Ludwig, is handling the issues surrounding his actions as a personnel matter as it would other county employees. The Sunshine Law does not treat elected officials as employees, according to court rulings cited in the Missouri Attorney General's 2006 handbook on the law.

Local governments across the state, from city councils to county commissions, periodically try to use the personnel exemption to hide details about the actions of public officials, Maneke said. But the use of "potential litigation" as a reason to hide records increasingly has become an umbrella for local governments, she said. According to the Sunshine Law, records relating to "legal actions, causes of action or litigation," may be closed. But the exception is being used to hide records that would normally be public, Maneke said.

"Far more often I see the litigation exception abused," she said. "That is one of the proposed changes that the Missouri Press Association has pending, an effort to tighten up that exception a little. It is something we have seen abused so much that we are trying to resolve these issues."

rkeller@semissourian.com

335-6611, extension 126

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