Missouri: The Hide Me State

Public institutions in Missouri are making a mockery of transparency.

Before I present evidence backing that claim, I'd like to tease you with a few questions. Answers will be revealed later in the column.

1.) How much do you think a public entity ought to be able to charge for someone to transcribe audio recordings?

2.) What if I told you that extrapolated out over 40 hours and 52 weeks, or an average work year, the transcriptionist could earn $312,000?

3.) Would it matter more to you if this request involved a public official having lied to his supervisor, taken an unauthorized trip several hours away in a public vehicle, escorted a 17-year-old girl to dinner and shopping, and then having driven home overnight to return to work the next morning?

Complaints galore

Since 2011, according to a response to my Sunshine Law request to the Missouri attorney general's office, there have been 1,221 Sunshine Law complaints filed to its website since 2011. To the AG's credit, the office has created a form that makes it very easy to file a complaint. I have little doubt that some of these complaints are dubious. The Sunshine Law makes exceptions for closed records, most notably for personnel matters and records, educational records, purchase of real estate and litigation. There are other exceptions that protect privacy, such as records of Social Security numbers, sensitive security information and a number of exceptions for law enforcement records, including those dealing with juveniles.

But the law says that public bodies should interpret the open meeting and records law liberally. In other words, if a public official is unsure of how the law reads, he or she should presume every meeting is an open meeting and that every record is an open record.

While some percentage of the 1,221 complaints to the AG's office may have been unwarranted, obviously many of them were legitimate.

Not long ago I had the occasion to talk to a freelance journalist who was working on a transparency project for a not-for-profit organization. She had contacted me about some Sunshine Law issues we've dealt with over the past couple of years. Her name is Erin Richey, and during her research, she had asked the AG's office, "When was the last time the attorney general brought an alleged Sunshine Law violation to court?"

The answer, Richey said, was 2011, when the office sued the city of Lebanon; the case concluded in 2013.

So at least 1,221 Sunshine Law complaints have been made to the state attorney general in the past four-plus years. But it only took one case to court.

For the past several weeks, I've pointed out a lack of transparency by the governor's office, about how Gov. Jay Nixon's lack of electronic communication and avoidance of using his publicly issued cellphone allows him to sidestep scrutiny and public records requests. I opined last week that a culture of transparency and clear communication starts at the top, and Missouri is not making it a priority. The numbers supplied by the AG's office support that claim.

Local examples

Data provided by the AG's office, which promptly and professionally handled my request, show several of the complaints have come from Southeast Missouri. Here are a few entities that have been accused of violations since 2011: Three Rivers Community College, Cape Girardeau Police Department, City of Cape Girardeau, Cape Girardeau County Circuit Court, Scott County prosecutor and assessor, City of Bloomfield, Gordonville Fire District, Dexter, Poplar Bluff, Jackson School District, Miner, Bollinger County Ambulance Service and the Perry County prosecutor.

The records I requested don't show if any of these matters were resolved. I'm sure in many instances the AG's office convinced public bodies they needed to divulge information, and court wasn't necessary. I sent some follow-up questions to the AG's office on Thursday to find out more about how it handles these complaints. As of my late Friday morning deadline for this column, I hadn't received responses. But the numbers are eye opening. The percentage of tough enforcement is microscopic.

There have been some glaring examples of Sunshine Law violations in our own backyard, though no one issued a complaint to the AG's office. In Bollinger County in November, the county commission decided to hold an invitation-only meeting to discuss solutions to problems with road maintenance. The editor of the Banner-Press, the weekly newspaper there, only found out about the meeting through back channels. No meeting notice was posted. The editor went. Tax policy was among the discussions. If that wasn't a knowing violation, I don't know what would be.

Several entities in Scott County, after numerous communications, have neglected or refused to send simple public records such as meeting agendas, minutes and police reports to the newspaper. Chaffee City Council refuses to send minutes if our reporter doesn't physically attend a meeting. Chaffee and other entities, such as Scott City, repeatedly neglect to send meeting agendas even though we've asked for them numerous times. In these cases, it seems the entities don't see Sunshine Law adherence as necessary or important.

Others may see it as important, but find creative ways to keep information sealed.

Take Southeast Missouri State University, for example.

Redaction action

The publicly funded university twice in the past couple of years has filed responses to open records requests issued by our newspaper, but found ways to lock down or discourage the release of information. One of the requests sought reports relating to students who were punished for acts of violence through the student judiciary process.

The purpose of the request was to examine whether any sexual offenses had run through the student process rather than, or in addition to, official public policing channels. The university provided the documents but redacted the names of the students -- again, who had been found guilty of violence resulting in punishment -- by citing that these students were protected under the educational records exemption in Missouri's Sunshine Law. (It should be pointed out that the federal law that governs student privacy specifically states that such records should be deemed criminal records and open for inspection. The law was written that way so serial rapists couldn't fly under the radar. The state law is less specific, but I highly doubt a judge would see it the university's way.)

In addition to the redactions, we also found that the descriptions of the infractions were so vague and the category they were filed under so broadly inclusive, that the records were rendered useless for inspection and accountability. Southeast basically claimed that a student punished for violent crime by its own judiciary process should expect privacy, because his offense and punishment are part of the education he receives at the school.

$2,900 charge

The second request was for all materials dealing with NCAA violations the university self-reported last year. The university at first offered no specifics, saying only that the head women's basketball coach had been suspended for a game for self-reported violations. This was a couple of months after an assistant coach resigned because of the violations. Our sports journalists, not satisfied with the original vague statement, pushed for more records.

Eventually, university president Dr. Ken Dobbins and his senior associate, Brady Barke, visited the Southeast Missourian office. They offered two scenarios: One, they could provide us the records we asked for if we paid them $2,900; and, two, they could provide to us at no cost the same document they would hand over to the NCAA, which outlines the infractions that were found.

Initially, we were happy to have the document they were providing at no charge. The document did indeed outline the recruiting violations.

Here's the problem: We weren't just looking at some ill-timed text messages or an accidental, harmless slip-up. The violations included an adult male assistant coach secretly meeting a minor female alone. In the context of "recruiting," what the assistant coach did -- driving to Tennessee to meet secretly with a recruit, picking her up at a restaurant, driving her 60 miles to another town for dinner (for which he paid) and shopping at a mall (for which she paid) -- certainly violated NCAA rules. But the nature of the secrecy and the age and gender of the recruit spurred questions about whether the case was considered from a criminal standpoint.

We thought the interviews with witnesses might offer pertinent information about this unauthorized visit and how the university investigated the matter. So I asked Barke to provide me a detailed accounting of the $2,900 charges stemming from our request.

There were six hours and 30 minutes of recordings. The charge for transcription would be $150 per hour. That translates to an annual transcription salary of $312,000. Dobbins' base salary as the university president is $235,000.

When I wrote Barke that I thought the charges discouraged transparency and accountability, he responded " ... we believe we have been very open in providing you with the information relevant to the NCAA violations. Honestly, I find suggesting otherwise to be offensive."

The $150/hour charge, Barke said, was an estimate acquired online based on information found through a transcription service. He provided a link. My own search for voice-to-text software found that the price for it starts at $40. Or, Barke could have asked a part-time clerk somewhere on campus to transcribe for $10/hour for a total of about $140. Or he could've waived the fee.

We had other disagreements, too. Sunshine Law advocacy experts tell me that entities should charge only to search and produce, not to redact. Barke cited a provision that applies to tax credit records as justification to charge another $773 for redaction at $38.66 per hour.

To put Barke's charges into perspective, consider another Sunshine Law request we filed. Actually, there were two, one to the governor's office and the other to the Missouri Department of Mental Health, for all documents filed for an entire year dealing with the closure of a mental health facility. The DMH charged $340 for 11,000 emails. The governor's office did not charge us. The university charged nearly three times as much, $1,083, for the retrieval, search and production of emails dealing with the NCAA investigation.

This is how the Sunshine Law reads: "The hourly fee for duplicating time is not to exceed the average hourly rate of pay for clerical staff of the public governmental body. Research time required for fulfilling records requests may be charged at the actual cost of research time. Based on the scope of the request, the public governmental body shall produce the copies using employees of the body that result in the lowest amount of charges for search, research and duplication time."

Barke told one of our sports journalists the university's Department of Public Safety was involved in the investigation to determine any criminal wrongdoing, but "there was not sufficient evidence to suggest that a romantic relationship" existed. At a cost of $2,900, we'll have to take the university at its word that it took the criminal considerations seriously.

Tracking difficult

There is no way to search the state's court database to see how many Sunshine Law suits have been filed in Missouri. But it's pretty clear that if public bodies are going to be held accountable for transparency, it will have to be private entities that do it.

And officials know it. With all of your tax dollars at their disposal, they can afford to string out cases, use delay tactics and pull out obscure legal references to protect their "private" matters while running up legal fees for their adversaries. Or they can shrug their shoulders, ignore you altogether and roll the dice that you're not going to fork over thousands of dollars for legal representation.

Last fall Missouri Auditor Tom Schweich, now deceased, released an audit of the Sunshine Law. He found violations all across the state. Minutes weren't being prepared or maintained or didn't include sufficient details of actions taken. Public bodies didn't disclose the reasons why they were going into closed sessions.

Minutes weren't being reviewed and approved. Minutes from closed meetings weren't kept, or were not complete. Boards and commissions discussed open topics in closed meetings. Policies and procedures were absent or not followed. Sunshine Law requests were lost or undocumented. Agendas weren't being prepared.

The evidence is overwhelming. The numbers and personal anecdotes lead me to believe that routine assaults on public transparency have become epidemic in the Show Me State.

Bob Miller is the editor of the Southeast Missourian.