Both sides can live with revised version of Sunshine Law

JEFFERSON CITY, Mo. -- Revisions to Missouri's Sunshine Law recently approved by the Missouri Legislature could be viewed as a textbook example of successful political compromise: Neither side got everything they wanted, both sides are dissatisfied with certain provisions, but everybody says the final result is one they can live with.

Advocates of government openness have long contended Missouri's law ensuring public access to official meetings and records has lacked teeth. Although the bill that cleared the legislature May 14 doesn't provide the sharp fangs some sought, it is being hailed as a major improvement.

State Sen. Sarah Steelman, the bill's sponsor, said she was forced to compromise on some issues in order to win passage.

"I'm happy to have that movement in the right direction," said Steelman, R-Rolla. "It's better to err on the side of openness in government and not secrecy."

In the five-year effort to strengthen existing law, groups representing local governments and school boards have been leery of tighter requirements and harsher penalties they claim would discourage people from seeking public office.

Missouri Municipal League executive director Gary Markenson said his group provides extensive training in the Sunshine Law to public officials. But with the vast number of public boards, panels and commissions, he said, it is often difficult to keep citizen-volunteers, who constantly rotate in and out of office, fully educated as to what the law requires of them.

"There are tens of thousands of people who covered by this law in Missouri," Markenson said. "We get a couple of thousand at most a year that we train."

Cape Girardeau city attorney Eric Cunningham said he doesn't envision the city making any changes in its open meeting and open records policies as a result of the bill, though he is still assessing the impact.

"Some of the ramifications on what it means for us, we still have to work out," Cunningham said.

Gov. Bob Holden touted passage of the Sunshine Law upgrade as of the major successes of the 2004 legislative session. Barring discovery of an unforeseen flaw during the customary review process by his staff, Holden is expected to sign the bill into law.

Lower standard of proof

One key provision would increase penalties for violations and lower the standard for proving the law has been broken in some instances.

Existing law allows a penalty of up to $500 for a governmental agency or official who "purposely" violates the law. Under that high standard of proof, it has to be shown that an official knew he was breaking the law but did so anyway for a penalty to be imposed.

The version of the bill originally passed by the House of Representatives called for a standard of "negligence," meaning a person didn't know they were breaking the law but should have known. Some senators opposed that low threshold, so the final bill takes a two-tiered approach.

A purposeful violation could yield a maximum fine of $5,000. Someone who "knowingly" breaks the law could face a $1,000 fine.

A knowing violation is purported to be a higher standard than mere negligence but less serious than a purposeful violation. However, Jean Maneke, the attorney for the Missouri Press Association, said that, based on Missouri Supreme Court precedent, there may be no legal distinction between purposeful and knowing violations.

"I can't, at this point, separate those two terms," Maneke said.

Another important provision limits copying costs governments may charge people request public documents to 10 cents a page. Current fees vary across the state. In past reports, State Auditor Claire McCaskill has cited some local governments for charging excessive amounts. Markenson said the fee cap is micromanging of local affairs by the legislature.

Online meetings

Recognizing the vast changes in communications that have taken place in recent years, the bill codifies language relating to electronic records and online meetings.

If public officials choose to discuss issues in an Internet chat room, for example, they would have to publicly post the planned discussion and allow the public to participate. E-mail exchanges between government officials would be considered open records.

Missouri Press Association executive director Doug Crews said some elected officials use the Internet to discuss and decide issues before ever debating them publicly.

"That provision is an attempt to make sure there isn't too much chatting going on behind the scenes by public officials," Crews said.

Markenson said officials are already prohibited by existing law from engaging in such actions, but that the bill would make that clear.

"We have always advised cities that a meeting is a meeting, whether it is held in the council room, the coffee shop, on the phone or in a chat room," Markenson said.

Although she favored a stronger bill, House Speaker Catherine Hanaway, R-Warson Woods, said the final version strikes a good balance between providing greater public access to government proceedings without placing onerous requirements on local officials.

"Only those that are inclined to be bad actors and close out sunshine are going to be sanctioned," Hanaway said. "Those that are doing a good job and performing their functions in a transparent manner aren't going to have any trouble with this bill."

The bill is SB 1020.

mpowers@semissourian.com

(573)635-4608