(Missouri Independent) – At a 2014 gathering of licensed drug counselors at the Tan-Tar-A resort in Osage Beach, Chuck Daugherty delivered a warning.
Marijuana legalization activists in Missouri, he said, were using tactics akin to 1960s radicals to advance their cause.
Daugherty is the executive director of ACT Missouri, a nonprofit established in 1991 to promote drug and alcohol awareness. At the time of his Tan-Tar-A speech, a major portion of the group’s funding came from federal block grants distributed through a contract with Missouri’s Department of Mental Health.
In a presentation entitled “Marijuana Proponent Strategies,” Daugherty ticked through the “rules for radicals” he believed were the blueprint for legalization activists, and offered advice on how those in the room should respond.
In particular, he called out Aaron Malin, who had been filing open records requests with various drug task forces and law enforcement agencies seeking information about how they were fighting the war on drugs.
Malin had recently submitted a pair of Sunshine Law requests with ACT Missouri asking for basic budgetary documents, Daugherty told the crowd, and he had gladly turned over the records.
“I gave it to him. You want it, fine. There’s nothing in there that’s wrong,” Daugherty said, according to a recording of the presentation provided to The Independent. “We responded. He got it. No problem. We responded because it’s all public.”
When Malin heard about Daugherty’s presentation — and that it singled him out and even featured a screenshot of his tweets — he submitted a third records request asking for it.
Daugherty refused, arguing that even though ACT Missouri accepted public funding it was a private nonprofit and not subject to the Sunshine Law.
Malin sued, and after nine years of legal wrangling, an appeals court earlier this month agreed with Daugherty.
In a unanimous decision, a panel of judges on the Missouri Western District Court of Appeals concluded ACT Missouri does not qualify as a quasi-governmental body that would be required to abide by transparency laws.
Judge Cynthia Martin wrote in her decision that even though nearly two-thirds of ACT Missouri’s funding over a three year period came from its contract with the state, its activities “went far beyond the activities contemplated by the (department of mental health) contract.”
Neither Dougherty nor his attorney responded to requests for comment on the ruling.
Malin said that while he is disappointed, he doesn’t plan to appeal and respects the court’s decision.
“I will continue to push for public access to open records across the state and strongly urge the legislature to pass a statutory amendment to require more transparency of entities spending taxpayer money in Missouri,” he said.
‘Thumb on the scale’
David Roland, director of litigation for the libertarian Freedom Center of Missouri, believes the appeals court got it wrong.
Roland, who was not involved in the ACT Missouri case but has represented Malin in other open records litigation, said courts are directed by the Sunshine Law to construe its tenants broadly to “promote the public policy of transparency.”
There is supposed to be, Roland said, “a thumb on the scale in favor of transparency.”
In this case, the appeals court made no effort to do that.
“That is a significant error,” he said, “and it’s one that I think needs to be corrected. … To my mind, the court is not really doing justice to the intention of the legislature when it created the Sunshine Law.”
The ruling restricts the number of publicly-funded organizations who are subject to Missouri’s transparency laws, Roland said, and “it may discourage litigants who have valid cases to be made that certain organizations are supposed to be transparent to the public about how they’re using taxpayer money.”
Jean Maneke, an attorney for the Missouri Press Association, worried the court’s decision too narrowly defined what would qualify as a “quasi-government body.”
“I used to be president of a not-for-profit children’s organization in the city, and we functioned solely on receiving federal funds for handicapped kids,” she said. “We talked about this issue a lot, and I always thought, ‘well, we’re better to err on the side of being public.’ Why not err on the side of openness?”
But the appeals court decision would likely mean groups like the one she used to lead would come to a different decision today, Maneke said.
Daugherty discussed his decision to abide by the Sunshine Law for the initial requests during his 2014 presentation, telling attendees that while ACT Missouri isn’t a quasi-governmental body, “I have nothing to hide. We run a clean ship.”
During a 2021 deposition in the case, Daugherty said he was not aware of anyone in his organization ever discussing Malin’s requests publicly.
Daugherty turned over records for the first two requests because they were budgetary documents that “he could have gotten from, you know, other sources. And in an effort to be open, I did provide him stuff. At the time, I didn’t think anything was wrong with it because we’re transparent.”
He then spoke to his board of directors, Daugherty said during his 2021 deposition, and “at that point all of the board said… the Sunshine Law didn’t apply to us.”
Roland said that while he disagrees with the court in its ruling that ACT Missouri isn’t subject to the Sunshine Law, he is encouraged that, at least initially, Daugherty turned over some records.
“When it came to information that they didn’t so much care if the public had, they were willing to hand it over,” he said. “They chose to and that’s not a bad thing.That’s something that we should encourage. If they choose to be transparent to the public, that’s a net benefit to society.”
Maneke agreed, saying that it is possible that “there was something in that third request that ACT simply didn’t want the public to know or that they considered private.”
As for Malin, he still has numerous other open records lawsuits pending, including a hearing next month before the same court of appeals in a case involving the Cole County prosecutor refusing to turn over communications with a local drug task force.
After several victories in court, Malin seemed to take the ACT Missouri verdict in stride.
“We fought the good fight,” he said. “Nobody wins every case.”
