(Missouri Independent) – When Andrew Bailey took over the attorney general’s office from Eric Schmitt in January, he inherited more than 200 unfulfilled records requests submitted by members of the public.
Six months later, that backlog of records requests continues to grow.
And because of the backlog, Missourians seeking public records from Bailey’s office face delays that can stretch up to a year.
It’s a situation observers say would be unacceptable for any government agency. But it is especially problematic for the office in charge of enforcing Missouri’s Sunshine Law — designed to ensure the public has access to government records and meetings.
“Transparency in government is a good goal, but so is timeliness and responsiveness,” said Jean Manake, attorney for the Missouri Press Association. “At this rate, responsiveness is almost non-existent. If justice delayed is justice denied, then delayed responses are the same as denial of a response.”
According to the attorney general’s office, it currently has 374 pending records requests filed by the public. It has received 150 since Bailey took over the office in January, and it inherited 224 from Schmitt, who was elected to the U.S. Senate last year.
To verify the scope of the backlog, last week The Independent asked for the attorney general office’s sunshine log — a list or spreadsheet that most government offices maintain that documents pending records requests.
This sort of narrow request historically can be turned around in a matter of days, Manake said.
The attorney general’s office says the earliest the sunshine log could be turned over was Dec. 11
“This date reflects our office’s good faith effort to process sunshine requests as quickly as possible in the order they are received,” the office’s custodian of records wrote in response to the request.
It may have inherited much of the problem, but the attorney general can’t stand idly by as the backlog grows and delays mount, said David Roland, director of litigation for the libertarian nonprofit Freedom Center of Missouri.
“It’s not an excuse to say, ‘Oh, well, we’ve just gotten so many requests.’ All right, fine. You’ve gotten a lot of requests. You don’t get to just ignore the law. Treat this as the priority that it ought to be and allocate your resources accordingly,” Roland said. “And if you just don’t have the resources, go to the appropriate legislative body and request more resources. But the solution cannot be to just wave your hands or kick the can down the road.”
A spokeswoman for the attorney general’s office said Sunday night in an email to The Independent that because of the volume of requests the office receives, “we have named not only a full-time custodian of records but also dedicated one attorney for full-time legal review and support.”
But Roland said he’s concerned the attorney general’s office has put policies in place that exacerbate the delays in turning over records to the public.
When requests are submitted, an automated response is generated from the office’s custodian of records that declares that requests will be reviewed “in the order they are queued.”
The automated response likely delays when the custodian of records actually receives and reviews a request, Roland said, and insisting on dealing with requests in order means small requests linger needlessly as the office deals with larger inquiries.
“As they’ve got it set up right now,” he said, “it just seems to me that they are intentionally trying to forestall dealing with citizens’ requests. And that is a huge problem.”
‘Sunshine Law as an offensive tool’
Previous criticism of the attorney general’s office has focused less on its responsiveness to requests than on allegations that under Schmitt it was weaponizing the Sunshine Law against perceived political enemies during his successful run for U.S. Senate last year.
Schmitt issued broad records requests to a university professor in Seattle, Washington, who led an organization that studied misinformation online. He demanded three-and-a-half years of emails from two staff members and a postdoctoral researcher at the University of Missouri, as well as four years of emails from two Missouri School of Journalism professors.
And days after a Missouri State University professor tweeted disparaging comments about Schmitt, the attorney general’s office sent him a request for three months of his emails.
The office also issued requests for records to numerous local school districts, including multiple requests to Springfield Public Schools. The superintendent of the Warren County R-III District said in March that the district was still holding a huge amount of documents that the attorney general’s office requested but never came to collect.
The Independent filed an open records request in early October asking for all the requests issued by the attorney general’s office during Schmitt’s tenure.
In response, Schmitt’s custodian of records said the documents would be provided in mid-November. At that time, shortly after Schmitt won a U.S. Senate seat, The Independent was informed the records would not be available until mid-December.
In the final days before turning the office over to Bailey, Schmitt’s staff said the records would not be available until March.
When The Independent inquired about the records in March, Bailey’s custodian of records admitted she was essentially starting from scratch on the October request.
As of last week, the request is still pending.
During an event in March in Warrenton, Bailey suggested he was not interested in copying Schmitt’s tactics regarding the state’s open records laws.
“Keep your documents. I’m good,” Bailey told a local school official, according to the Warren County Record. “I don’t intend to use the Sunshine Law as an offensive tool.”
(Photo by Annelise Hanshaw – Missouri Independent)
