COLUMBIA, Mo. -- Government transparency advocates are concerned that a pair of Missouri laws could severely limit the public’s ability to access records from law enforcement agencies and public colleges.
One gives police and other law enforcement agencies sweeping power to close records related to security measures, GPS data and other investigative information if the records could potentially put the public in danger.
The other builds upon a current law that exempts some companies and nonprofits that partner with public colleges from the state’s open records laws. It states that meetings, records and votes submitted by a business to a public college may be closed if they relate to “investments in or financial transactions with business entities for investment purposes.”
The two laws, which go into effect next month, received overwhelming support this year by lawmakers from both parties who argue that they are common-sense revisions to the state’s open records law. But supporters of open government say they run the risk of preventing citizens from being able to access information that should be public.
“We often see law enforcement agencies try to push the envelope in terms of Sunshine Law disclosures because they’re focused on doing their job and they don’t always focus on the public’s right to know,” Jean Maneke, an attorney for the Missouri Press Association, said in a phone interview.
The laws come amid a broader push by some lawmakers to chip away at the state’s Sunshine Law, which protects Missourians’ right to access public records and meetings. Transparency advocates, at the same time, have fought for years to make Missouri state government and local agencies more responsive to the law.
“The Sunshine Law has been under attack, frankly,” said Dennis Ellsworth, the executive director of the Missouri Sunshine Coalition, an open government advocacy group.
Even as legislatures across the country push to revise, or overhaul, state open records laws, the pair of Missouri bills were a surprise to some national government transparency advocates.
“Wow, those proposals would be unusual and a departure from what I’ve seen across the country,” David Cuillier, the director of the Brechner Freedom of Information Project at the University of Florida, said in an email to The Star.
“I haven’t seen a 50-state comparison on those issues before, but both bills are problematic, in my experience.”
Cuillier added that “Unrestrained secrecy tends to lead to corruption, waste, and inefficiency.”
The policing law allows law enforcement agencies to close records related to security measures, GPS data or investigative or surveillance techniques if disclosing the information “has the potential to endanger the health or safety of an individual or the public,” according to the law. Information or data provided to a tip line for the security at an educational institution could also be closed.
And information contained in a suspicious activity report provided to law enforcement could be considered a closed record.
Maneke said there’s a possibility that police agencies could abuse the law to withhold information from the public.
She pointed to the provision that allows GPS data to be a closed record.
“I’ve argued many times that taxpayers paid for this GPS data and, therefore, it seems very frustrating to me that information under that is being closed,” she said.
Lauren Bonds, legal director for the National Police Accountability Project, a nonprofit that promotes law enforcement accountability, said that the provisions of the bill were not atypical. However, she said the vague language could be weaponized to withhold information.
“‘Investigative and surveillance techniques’ sticks out to me as particularly problematic and something that can be vague enough and broad enough to be abused,” she said.
State Rep. Lane Roberts, a Joplin Republican who carried the bill in the Missouri House, said in a phone interview that there’s been concern among law enforcement that the release of some public records puts innocent people at risk.
“Sometimes there is a relationship between transparency and confidentiality — it’s called reason,” he told The Star. “Sometimes it’s not reasonable to be too transparent.”
Roberts said he was not talking about government transparency, but about investigative information and “things that would put a person at risk.”
“That’s not a reasonable thing to do in the name of transparency,” he said. “There has to be a level of reason involved.”
Two law enforcement agencies contacted by The Star said they would enforce the law but did not respond to concerns that it could be abused to close certain records that should be public.
Jacob Becchina, a spokesperson for the Kansas City Police Department, said the KCPD was “committed to adhering to all laws, especially those that pertain to public records.” John Hotz, a spokesperson for the Missouri State Highway Patrol, said the agency “will comply with the provisions” of the law.
The law related to public colleges expands the types of records that may be closed when an individual, corporation or other business entity submits information to a public college. It extends that definition to certain investment information.
The records are allowed to be closed only if a public college keeps an annual report detailing money spent to and from the company and the college.
State Sen. Greg Razer, a Kansas City Democrat who sponsored a version of the legislation, said the University of Missouri System requested the law. The law, according to Razer, cleans up a provision of the Sunshine Law that requires companies such as hedge funds that invest with the University of Missouri to disclose their investors publicly.
“The way our Sunshine Laws are written, Mizzou or the UM system has to say, X hedge fund has invested and then that hedge fund will be legally obligated to divulge everyone who’s invested in them,” he said.
Razer said the new law doesn’t prevent the public from accessing information about which companies are investing in Missouri colleges. It just allows companies that invest with public colleges to not have to disclose other companies they’re investing with, he said.
Christian Basi, a spokesperson for the UM System, said in an email to The Star that the system has “faced resistance when attempting certain investments in the past because of how our investment could compromise the confidentiality of those investments.”
The amendment to state law allows the university to “maintain confidentiality with respect to the specifics of how an (external to the university) investment manager invests inside specific investment vehicles (such as companies, markets, pending acquisitions),” he said.
However, Basi said, information regarding how much money the university is investing and a summary of any investment if still available to the public.
“For example, with an investment in venture capital funds, this adjustment to the law would maintain the confidentiality of those firms’ strategy while the amount and nature of the university’s investment would be information that remains available to the public,” he said.
State Sen. Rusty Black, a Chillicothe Republican who sponsored the final version of the law, said that while the legislation limits what is available under the Sunshine Law, it’s a good thing for investors and for Missouri colleges.
“I think it’s a safe thing to do for the university system to be able to invest as wisely as they can and not limit who they can work with when they’re doing their investing,” he said. “Any firm that they could possibly look at can have confidence that that firm’s private information is not going to be released.”
Maneke said that she hopes that the law doesn’t prevent the public from accessing investment information from Missouri’s public colleges. Because there have not been any lawsuits or rulings on the law, it’s unclear how it would be applied, she said.
“Anytime you have a public institution that makes investments, whether it’s a school or government investing their funds, the public has an interest in where that money is being used — is it a good investment, is it a bad investment —- because it’s the public’s money,” she said.
“It’s troubling. I don’t know what the impact of that is going to be because I really haven’t had clients run into that.”
Razer, in a follow up text to The Star, pushed back on any criticism of the legislation, saying that it merely clarified a narrow section of state law.
“We want companies to invest in, and collaborate with, our colleges and universities, but that does not make these entities a ‘government’ body,” the text said. “This is a commonsense clarification which is why it received broad bipartisan support.”
While the application of the new laws may be unclear, government transparency advocates are concerned about the message they send amid the broader push by lawmakers to whittle away at the state’s open records laws.
Maneke said there was a “definite push by the legislature this year to close access to some records.”
“I’ve been very concerned about the efforts to narrow what is actually considered a public record because I think the public will pay for that, will lose a lot of information,” she said.
In theory, the Sunshine Law is supposed to make public records readily accessible. In practice, requests can sometimes linger for months and large fees can sometimes discourage the public from requesting records in the first place.
“I can tell you, far and away, the constituents who have benefitted from the Sunshine Law, the average citizens who need more and more access to knowledge about what’s going on in government and public bodies,” said Ellsworth. “It’s not about wanting to compromise security and that kind of thing. We’re not about that.”
