Sunshine requests backlogged at Missouri Attorney General’s Office
attorney General Andrew Bailey talks with the News-leader at his office in Springfield on Thursday, Nov. 2, 2023.”/>
When Missouri attorney General Andrew Bailey was appointed to succeed former attorney General Eric Schmitt following his election to the U.S. Senate last year, the office inherited 224 unfulfilled open records requests under the Missouri Sunshine Law.
Now, with less than two months left in 2023, he expects to clear this queue from 2022 by the end of the year.
“We are on pace to clear the backlog by the end of the year and to ensure that the state’s transparency laws are followed,” Bailey said.
However, that means that any request for information submitted during 2023 is still waiting for attention, which may not be received until 2024.
For a request for information from the state attorney general’s office submitted by a News-Leader reporter in June 2023, the return date is projected to be January 2024. The same reporter is still waiting on records requested in October 2022 and April 2023.
“We have closed hundreds, hundreds of Sunshine Law requests by fulfilling them and have delivered hundreds of thousands of documents to the people that have requested them,” Bailey said.
With a lag of nearly a year to fulfill a request, sometimes the data requested comes far too late.
In fact, a previous request submitted by another News-Leader reporter on July 7, 2022 was returned on Sept. 6, 2023, long after the information contained in the records was relevant for current news coverage.
Bailey’s office has increased staffing for records fulfillment since July, when it was said to be adding more full-time positions to process the backlog of requests.
“We’ve made enormous strides since I took office,” Bailey said. “We have five employees working on this issue. It takes time to recruit staff, to train the staff and to implement a process that’s fair and efficient and accountable to the transparency requirements and state statute.”
Some transparency advocates have questioned the office’s practice of fulfilling requests as they were submitted. Jean Maneke, an attorney for the Missouri Press Association, says this is the first time in recent memory that such a backlog has developed in the attorney general’s office.
“The Sunshine Law does not specifically say that it’s first in, first out. That’s not in the law,” Maneke said. “Most of the attorneys general in the past, at least the ones that I have had dealings with, have always dealt with requests where the ones that were really easy to fulfill got done pretty quickly.”
Bailey contends that fulfilling requests in any order other than chronologically would be unfair to requesters.
“I think that you’ve got to fulfill them in the order in which they came in, or you run the risk of people saying that you’re cherry-picking favorable requests,” Bailey said. “It’s a no-win situation.”
However, Maneke remembers a time when past state officials would pre-emptively make records publicly available, if they were about a topic that was guaranteed to garner public interest.
“At one point in the past, I can’t tell you exactly how far back, but there was an effort made, when a request for records came in, and it was one that there would be multiple requests for, that kind of information was simply brought up online to make life easier for everybody,” Maneke said. “And that makes a lot of sense.”
Elad Gross, a Democratic candidate for attorney general in 2024, would like to implement a return to this level of unsolicited transparency, if he is elected to succeed Bailey.
“I think that that would deal with a lot of the litigation issues we have around the Sunshine Law and a lot of the lack of transparency we have in our governments already,” Gross said. “I think the default should be transparency.”
Gross is known for his victory in a 2021 Missouri Supreme Court case that ensured requesters seeking records can’t be charged for the time state attorneys spent reviewing documents prior to release.
Another point of concern, that has not yet arisen during Bailey’s tenure as attorney general, is a fact that came into the spotlight while Schmitt was in office. In 2021, Schmitt claimed that the attorney general’s office could not enforce Sunshine Law violations against the governor since he was a client.
“That is a frequent response from the attorney general’s office,” Maneke said. “They consider any state agency a client of theirs, and so it is very frequent that the attorney general’s office cannot pursue what they may have to say could be a potential violation of the law.”
Bailey, however, said he intends to uphold the responsibilities of his office, with mindfulness to its relationship with state clients.
“I think that it’s up to the attorney general’s office to enforce the Sunshine Law as written,” Bailey said. “Where you have an attorney-client relationship with a state agency or a state official that is your client, you have to be cognizant of that as well.”
However, although the attorney general can represent state interests, it isn’t the only avenue for a state agency to obtain legal services.
“Almost every state agency, if not every single state agency, has in-house attorneys and has outside counsel they work with,” Maneke said. “They are by no means obligated to have the attorney general defend them.”
Bailey, who served as general counsel to Gov. Parson prior to being appointed attorney general, said that his previous post would not cause any conflicts of interest in enforcing Sunshine Law violations, should they arise.
“No, not at all,” Bailey said in response to the question about a conflict of interest. “I mean, the governor’s office fulfills its obligations under the Missouri Sunshine Law, just as do most other officials in the state of Missouri, and I know the governor is dedicated to fulfilling his statutory obligations the same way that I am.”
Under Schmitt’s administration, clients that were unable to find recourse for Sunshine Law violations with the Missouri attorney General’s office were left with only one option for legal relief.
“Sunshine Law enforcement is so often left up to the individual making the request, individuals who usually are not attorneys,” Gross said. “They probably don’t have the money to spend on attorneys, and they are being blocked from seeing things that they rightfully should be able to access.”
More:Politician or the people’s lawyer? How the role of Missouri attorney General has evolved
This raises a familiar question regarding the role of the Missouri attorney General, and whether that role is to serve the state or its people.
“The attorney general owes an obligation to the citizens of the state, in terms of that’s where the Sunshine Law enforcement to some degree sits,” Maneke said. “So he’s really got a conflict as to whether he represents citizens’ interest or whether he represents some state agency’s interest.”
In past years, there has been some talk about moving Sunshine Law enforcement to another state agency, or creating a new entity solely devoted to the task. Little progress has been made on this effort, as talks usually devolve into one topic — funding.
“It could be its own entity, but I recognize that any time you add a department to a state agency, you’d have to ponder to what extent you can fund it,” Maneke said. “And that often comes up when you bring the subject up.”
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