The year 1973 was eventful in U.S. history. It was the year of the U.S. Senate Watergate Committee hearings and it also was the year Senate Bill 1 passed in Missouri, or the state’s Sunshine Law. Missouri was one of the earliest states to adopt the measure as a means for residents to advocate for government transparency through the freedom of information.
Interpretations of the law, however, have changed what it can do, said Dave Roland, director of litigation and co-founder of the Mexico-based Freedom Center of Missouri.
Roland studied political science and and biblical studies and Abilene Christian University in Abilene, Texas, where he received his bachelor’s degree. He also has a master’s degree in law and theology from Vanderbilt University in Nashville, Tennessee. After law school, he worked for the Institute for Justice in Washington, D.C. Roland moved to Missouri in 2007 to work for the Show-Me Institute up until the founding of the Freedom Center of Missouri.
The center was founded in 2010 and initially focused on constitutional law issues, rather than sunshine issues. It would soon shift its focus as more and more people were coming to Roland and his wife, Jennifer Zeigler Roland, a Mexico native who is the executive director and other co-founder of the center.
“One of things we kept seeing over the years was the problem people were having getting access to public records and public meetings,” Dave Roland said. “People would contact us periodically and say, ‘Hey, what can we do about this,’ and so for a few years, our answer was well that’s just not an issue that we deal with.”
Knowing what a government is doing with public information and taxpayer dollars is the basis for self governance, he said. So, expanding the firm’s focus from constitutional to Sunshine Law still maintained the mission of the center. The change was approved by the center’s board of directors in 2015, Roland said.
The first cases
Once in effect, the center connected with Aaron Malin, a transparency activist and former member of Show-Me Cannabis, which is one of the advocacy groups supporting Amendment 2 on the November ballot.
“We filed a number of lawsuits (in 2015) with Aaron as a client, because he repeatedly had been denied public records and access to public meetings,” Roland said. “We thought, well this is a good opportunity to bring a whole wave of strategic litigation aimed primarily at establishing that even law enforcement agencies are subject to the Sunshine Law.”
Malin attempted to gather information on multijurisdictional organizations, such as the East Central Missouri Drug Task Force or MUSTANG drug task force.
“Aaron wanted to know what exactly are these entities doing with the power and the resources that the public has given them, and he couldn’t get straight answers from a bunch of them,” Roland explained. “About half of them refused to comply properly with his records requests, and then right here in Mexico, the East Central Missouri Drug Task Force denied him access to a meeting.”
Decisions in a number of cases from 2015 were made this year. So far, the center has won a majority of the cases it has filed. But the case regarding the MUSTANG drug task force concluded with a bizarre decision, Roland said.
“The judge found they were subject to the Sunshine Law, but then the task force’s attorneys acknowledged that for at least four of Aaron’s requests, they did not respond at all, … even though at trial acknowledged they received the request,” he said
The judge ultimately decided, however, the task force complied with Sunshine Law rules. Roland appealed and said there was an unpublished decision upholding the lower court ruling. Roland said he’s hopeful this case will be taken up by the Missouri Supreme Court since a similar case, John P. Strake v. Robinwood West Community Improvement District, was taken up by that court.
“We have been wildly successful with our primary goal, but somewhat less successful getting the courts to find that the various violations of the law were knowingly purposeful, which is the key to unlock civil penalties and recovery of attorney’s fees,” Roland explained.
A robust law, sort of
When it comes to the language of Missouri’s Sunshine Law, Roland said it is a strong piece of legislation, but issues still arise at the court level.
“Courts have interpreted it in such a way those incentives (expense reimbursement) have been stripped out of the law. The legislature designed the Sunshine Law so that citizens would have reasonable expectation if they proved a violation, they also would be able to recover their litigation expenses,” he said.
Missouri residents often do not have the resources available to fight violations in court, because Sunshine Law litigation can take upward of three years to be decided.
“We’re at a point now that even though the Missouri Sunshine Law is fairly strong on paper, it needs to be readdressed because of the way that courts have interpreted it. The (General Assembly) needs to go back and say, ‘all right, we need to clarify that it has to be easier for citizens to recover … the civil penalties that are authorized or the litigation expenses that the statute authorized,’” Roland said.
A lack of experience with the law?
With Missouri’s Sunshine Law being 45 years old, the biggest difficulty is public officials not understanding their obligations under the law, Roland said, adding there is an “active disincentive” for officials to understand the law. If officials knew more of what is required of them, they then would not be able to claim ignorance.
“The incentive that is created is for them to be ignorant. We see a lot of government officials leaning on that idea of ignorance, which I think is appalling,” Roland said.
A statewide problem
Missouri State Auditor Nicole Galloway released a report two years ago in November regarding how poorly government entities comply with the Sunshine Law. Staff from Galloway’s office sent more than 300 requests to various governmental organizations throughout the state on plain, rather than official letterhead. According to information released by the auditor’s office, employees were seeking very basic information: a copy of the minutes from the last meeting in 2015, the notice and agenda for the meeting, along with other basic information.
According to Galloway’s office, only 30 percent of entities responded within the window of time laid out in the Sunshine Law. The remaining entities either did not respond within the three-day window, but did reply after the deadline or did not respond at all.
“That truly is ridiculous and troubling,” Roland said. “Especially for a law that has been on the books for more than four decades now. We have gotten in this position because courts have not followed the spirit of the law when it comes to holding officials to account for violations.”
The work continues
Roland and the center are currently arguing six cases.
He presented oral arguments Thursday in Roland v. St. Louis City Board of Election Commissioners. The case is in relation to an election fraud in Franks v. Hubbard, which found that the election board violated state absentee ballot laws.
Roland is appealing a decision that he needs to pay the government’s court costs, despite the decision in Franks that the election board did violate the Sunshine Law. The court, however, found the board conducted the sunshine violations unknowingly and not purposefully, hence the ruling Roland must pay court costs. The election board itself also separately appealed the decision it violated the Sunshine Law, Roland said.
Another case in which the center is awaiting a decision is Calzone v. Missouri Ethics Commission, which was argued April 10 in court. A decision in that case will determine whether citizen activists, in other words Missouri residents who regularly try to directly engage with lawmakers, will have to register and report as if they are lobbyists, rather than every day residents.
“So, as you see, we try to keep things both busy and interesting,” Roland said.
For more information about the center, visit www.mofreedom.org or call (573) 567-0307.