Abusing the Exceptions

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In the opening paragraphs of Missouri’s Sunshine Law, it states the following:

It is the public policy of this state that meetings, records, votes, actions, and deliberations of public governmental bodies be open to the public unless otherwise provided by law.  Sections 610.010 to 610.200 shall be liberally construed and their exceptions strictly construed to promote this public policy.

Exceptions to the Sunshine requirements are enumerated and few. That is as it should be, as the business of the public should be open to the public whenever possible.

In section 610.026, it states that in the case of document requests, “Documents may be furnished without charge or at a reduced charge when the public governmental body determines that waiver or reduction of the fee is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the public governmental body and is not primarily in the commercial interest of the requester.” This is the general practice of most entities from which we’ve made Sunshine requests, where fees have either been waived preemptively, abated upon request, or where it is not the practice of the entity to charge fees on small requests at all.

Most entities interpret the Sunshine law in favor of transparency. Ferguson consistently does the opposite. We start with the easy thing: The document request procedure in Ferguson results in endless delays, far beyond what the law allows in almost every case. And they never waive fees. One need only to browse the city’s sunshine portal to see requests which have languished far beyond the statutory due date. In most cases, they are not complicated requests that were delayed because they required staff attention, but rather, simple requests that somebody just didn’t get around to satisfying. One notable example: On June 24, somebody requested the employment contract of our new police chief. The document wasn’t released until July 28. Section 610.023(3) states that

Each request for access to a public record shall be acted upon as soon as possible, but in no event later than the end of the third business day following the date the request is received by the custodian of records of a public governmental body.  If records are requested in a certain format, the public body shall provide the records in the requested format, if such format is available.  If access to the public record is not granted immediately, the custodian shall give a detailed explanation of the cause for further delay and the place and earliest time and date that the record will be available for inspection.

This almost never happens, even with the most simple requests. That is to say, the city’s compliance rate for document requests is near zero. More serious to those who produce and read this publication, fees are never waived. The Ferguson Observer is the only publication which focuses on governance in our city. As a non-profit entity, there is no commercial or personal interest, only public interest. Yet the city uniformly declines to waive fees, forcing our reporters to pay out of pocket if they want to report a story. This policy has reduced the amount of information we are able to bring to our readers, to the detriment of us all.

The city’s misuse of the exceptions to open meetings is an even more serious matter. It is important to understand that these exceptions do not exist so that council members can avoid having discussions in front of community members who do not agree with them. They do not exist to prevent council members from being embarrassed, or to shield those doing business with the city from public scrutiny. They exist to protect specific, enumerated interests of the city which may be compromised by public disclosure, and to protect personal, proprietary information from misuse.

When these specific interests are not threatened by a public meeting, a closed session should not be held, even if it is lawful. Council has instead chosen to use the exceptions whenever possible, doing as much of the public’s business behind closed doors as the law allows. The selection of a city manager is but one example of a long string of inappropriate closed sessions, going back for years. Furthermore, the law requires that minutes be published of many of the closed sessions, in some cases within just a few days of the session. The latest of an endless series of violations of this law occurred just a few days ago: On August 17, council held a closed session on personnel. Minutes have not been posted for that closed meeting. On May 9, a special meeting was held for personnel. Minutes have been posted, but they are only for the public meeting – that is, a vote to go into closed session, a vote to adjourn, and nothing else. The law requires that appropriate elements of the closed meeting be disclosed.

The city’s steadfast refusal to allow the public to know their business makes it impossible for us to report the whole story to you, our readers. It works to the detriment of residents, who can not know why decisions are made on matters and people who affect our daily lives. And it works to the detriment of good government, as our councilors seem more interested in “CYA” than providing honest, transparent representation. A council which valued transparency would drastically reduce the number of closed sessions, yet council votes unanimously in favor of closed session, every single time. A council which respected its constituents would demand that the city clerk produce the appropriate minutes, so residents could know what was being done in private, but no such motion has ever been made.

Steve Wegert, who served as mayor some years ago, disagreed with my contention that leaking information from closed session is an honorable thing, though he did not dispute that it is lawful. His position is a stark contrast to that taken by Mike Pence in regard to certifying the Presidential election. As Chris Christie said, “Mike Pence stood for the Constitution. He deserves not grudging credit, he deserves our thanks as Americans for putting his oath of office and the Constitution of the United States before personal, political and unfair pressure.” We applaud every councilor who does the same.

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Nick Kasoff
Nick Kasoff, the editor of The Ferguson Observer, is a tax professional, landlord, information systems consultant, Libertarian committeeman, and community activist. A Ferguson resident since 2005, he formed the Observer with the help of a strong crew of fellow volunteers, who shared his belief that a regular record of the events and musings of this community was of great importance.