Audit criticizes Missouri legislators over open records

JEFFERSON CITY, Mo. -- State Auditor Tom Schweich released two audits Friday criticizing the Missouri House and Senate for maintaining that their members' personal records aren't subject to open records requests, even as they are seeking to toughen the state's open records law.

The Republican-led state House and Senate are considering legislation this year that would strengthen the state's Sunshine Law for people seeking public documents from state agencies. But lawmakers would not be subject to these changes because they have long claimed that the Sunshine Law does not apply to individual representatives and senators.

Missouri's open records and meetings law applies to any "public governmental body." Included in that definition are legislative entities created by the Constitution, state statutes or ordinances of political subdivision such as cities and school districts.

The General Assembly is a legislative body created by the constitution. But each of the 197 lawmakers comprising the Legislature is not "public governmental bodies" themselves, according the interpretation followed by the lawmakers.

"It is a double standard for the Legislature to impose additional requirements on other public governmental bodies while enjoying a blanket exemption from the Sunshine Law," the audit said.

The Senate said in a written response included with the audit that individual members are not considered a "public governmental body" and so records are not subject to open records requests. The House, in its written response, acknowledged the concerns of Schweich, a Republican, but said it would continue to follow the established precedent.

Both of Schweich's audits specifically reference the pending open records legislation when criticizing lawmakers' current practices

House Clerk Adam Crumbliss said officials have thoroughly researched the open records law and have long concluded it establishes a distinction between individual members and the legislative body itself. He said an individual lawmaker cannot pass a law alone and that the letters or emails sent by constituents to their legislator should not be public record.

"We certainly feel like we're in a position that we're following the law as it was written," Crumbliss said.

The Senate has passed the measure already this year and it would reduce fines for violations from up to $1,000 to $100, but no longer require that violations have been committed "knowingly." The government also would shoulder the burden of proving a meeting, record or vote could be closed. But it would not change the existing language that lawmakers say exempts their personal files from open records requests.

It also would require government organizations to post meeting notices 48 hours in advance, instead of the current 24-hour notice. But that change wouldn't apply to the Legislature, which would be able to continue to provide only 24 hours' notice for a committee hearing. The House is considering a similar measure, but it has not been debated by the full chamber yet. It has not taken action on the Senate's version either.

The Sunshine Law revision was tacked on a proposal to reinstate two exemptions that expired at the end of 2012. One covered operational guidelines developed by law enforcement for preventing and responding to terrorism incidents. Another dealt with security systems and structural plans for property owned or leased by a government agency. Reinstating these exemptions has been a priority for lawmakers and Gov. Jay Nixon.

"The Legislature should take this opportunity to bring individual members under the umbrella of the law while carving out legitimate and necessary exceptions to public discourse," the audit said.

Schweich's Senate audit also criticized the chamber for spending over $8,500 on a retirement dinner and gifts in 2011. The audit said the expenditures "do not appear to be a necessary or reasonable use of funds." The Senate responded that those expenses were not taxpayer generated, but instead came from lobbyist donations.

Overall, both the House and Senate received a "good" rating for their operations. That rating is the second highest on Schweich's scale. The audit covered operations from 2011 through June 2012. The Legislature was last audited in 2009 when Democrat Susan Montee was auditor.