Two bills offered to strengthen Missouri's Sunshine Law

JEFFERSON CITY, Mo. -- Governmental bodies that fail to comply with state open records laws would face tougher penalties under two bills a Senate committee considered on Monday.

The measures are similar in most respects, and called for raising maximum fines from the current $500 to $2,500. However, they differ on the legal standard needed to prove a violation.

The bill sponsored by state Sen. Sarah Steelman, R-Rolla, would subject public entities to strict liability, meaning that any refusal to provide an open document would be a violation. The other measure, sponsored by state Sen. Wayne Goode, D-Normandy, would require governmental bodies to "knowingly" violate the law in order to be fined. In that instance, if the body was aware of the law and chose to withhold information anyway it could be held accountable by a court.

Too much wiggle room

The current standard requires "purposeful" violation, meaning someone challenging a refusal of a document request would have to demonstrate a public official intended to violate the law.

Testifying in favor of both bills, State Auditor Claire McCaskill said the current standard leaves government bodies too much wiggle room to skirt the law's intent and leaves citizens with the same burden of proof needed to convict someone of first-degree murder.

"Now, even when you prove a government entity knew about the law, you have to prove they didn't want you to have that document," McCaskill said.

Compliance lax

McCaskill's office has conducted a number of performance audits in recent years to gauge compliance with Missouri's open records statute, commonly called the Sunshine Law. The results of one audit, based on records requests sent to a sampling of local entities throughout the state, showed a compliance rate of less than 50 percent.

Though the current law stresses openness, it is too often ignored because the cost to a citizen for waging a legal battle is great and the penalty for the offending entity is small, said Steelman.

"I really think we need a tougher Sunshine Law to deter government from closing records, closing meetings and keeping information from the people," Steelman said.

However, Gary Markenson, a lobbyist for the Missouri Municipal League, said making the law too tough would deter people from serving on small public boards, which in many cases are unpaid positions.

"With high penalties and strict liability, people will not volunteer to serve," Markenson said.

Markenson said the Municipal League wouldn't object to the "knowingly" standard called for by Goode's bill.

The committee also heard a bill sponsored by state Sen. Anita Yeckel, R-St. Louis, to allow public hospitals to keep secret records related to contracts with physicians, managed care providers and other proprietary information.

Representatives from public hospitals said Sunshine Law requirements put them at a competitive disadvantage against private hospitals because vendors are unwilling to offer public hospitals their best deals, knowing they will have to be publicly disclosed.

The bills are SB 685 (Steelman), SB 709 (Goode) and SB 779 (Yeckel).