Sunshine Law could allow for backdoor censorship of publicly funded journalism

With a decline in the independent, local newspaper industry as a whole, publicly-funded institutions have attempted to fill in the many gaps that have been left behind. Journalism schools, many of which are state government operated, have played a large role in this process. 

“It’s great for communities because they get local news that they otherwise wouldn’t get,” said Kathy Kiely, the Lee Hills Chair in Free-Press Studies and Professor at the University of Missouri School of Journalism. “This is an important model going forward into the future for providing communities with information they need.”

However, the relationship between journalism and publicly funded institutions gets complicated in conversation with public record laws, along with journalists’ ability to protect their sources. This became evident last September when Missouri Attorney General Eric Schmitt’s office requested emails from the Columbia Missourian and two Missouri University journalism school professors by way of the Sunshine Law. The Sunshine Law is meant to foster transparency by requiring public institutions to disclose their activities to the public. 

(Photo by Attorney General Eric Schmitt via Flickr)

The request was in regard to the school’s collaboration with PolitiFact, a nonpartisan newsroom that fact-checks statements by public officials. The school worked with PolitiFact to make sure that professors were trained in their fact-checking methodology while also training students in the PolitiFact fact-checking rubric.

Emails in the private journalism sector are typically protected by shield laws — laws that protect reporters’ privilege and allow reporters to refuse to reveal information about their sources. However, with the Missourian being affiliated with the University of Missouri, a state-funded institution, there is no such protection. The journalism school is cooperating with the request.   

“Journalists who work in [publicly operated institutions] are now going to be subjected to fishing expeditions from public officials who do not like what they’re reporting,” Kiely said. “That is a form of censorship that has a chilling effect on news organizations.” 

Tim O’Neil, a retired Saint Louis Post-Dispatch reporter and University of Missouri ‘74 alum, said he wished the school pushed back a bit more on the principle of Schmitt’s request. 

“It was a stunt by Schmitt  to get a few headlines,” O’Neil said. “The larger implication is that if professors have to give up their emails over fact-checking exercises, then what’s to keep a mayor, or a Senate candidate from demanding the emails of a reporter who’s writing an investigative story. If the university rolls meekly on this, then what does the journalism school have in terms of internal workings?”

Schmitt’s office has not specified what it is that they’re after with their request, just that they want to better understand how the Missourian checking works. 

“That raises the next question,” Kiely said. “The Attorney General can tell us how to do our jobs? I mean, do we really want to live in a country where the people in power get to tell journalists what they should and shouldn’t be covering?” 

Mike Hiestan, a student legal counsel at the Student Press Law Center, said that with public funding entering the journalism sector, there’s a whole ecosystem of news media that needs up-to-date legislation. 

“The citizens are supposed to own the government, and the government works for us,” Hiestan said. “It gives us the owners the ability to keep tabs on what it is our government officials are up to. People like Schmidt are really taking advantage of openness in these laws that is allowing them to go after information that they have no business seeing.” 

Brian Munoz, a Southern Illinois University alum and freelance journalist, said groups like the Student Press Law Center are vital to help news organizations attached to public institutions keep their editorial independence. He said the Sunshine Law should be working in favor of journalists and not against them. 

At SIU, the Sunshine Law did work in Munoz’s favor. Munoz worked at the student publication, the Daily Egyptian, during his time there and filed many FOIA requests as a part of his investigative reporting. 

“Public records are a valuable resource to hold people accountable,” Munoz said. “State agencies and those that receive taxpayer dollars in order to keep them accountable and transparent. Right now, where it becomes a little bit of a sticky situation is when it’s on the flip side with a news organization that is affiliated with a public institution.”

Without Shield Law protections, journalists can’t guarantee their sources the protection they need to speak with anonymity.

“Courts have found that the public good served by journalism is important enough that it should be provided some protection,” Kiely said. “Journalism is in many ways a last resort for people who are whistleblowers, people who are in an institution that’s corrupt.  They’re not going to talk and corruption festers. For years, this has been a precedent, and that’s the reason for it. If you take away that protection, it makes it more difficult for journalists to do their jobs.” 

Hiestan said that Schmitt’s email request, along with the larger story of the vulnerability of publicly funded journalism institutions, sets a dangerous precedent for the future. 

“To find out what stories student editors are covering, what the local NPR affiliate is covering, and  who they’ve talked to — that’s abusing Freedom of Information laws, ” Hiestan said. “They were never intended to be used that way.” 

Missouri governor attempts to limit access to government through changes to state’s Sunshine Law

Missouri Gov. Mike Parson is trying again to restrict access to public information, making it harder and more costly for people to hold the government accountable through open records laws. 

Parson wants government agencies to have the authority to charge fees for the time their attorneys spend reviewing and responding to records requested by the public. That would be a big increase in the cost for citizens or news organizations seeking open records and public data. 

The Missouri Independent first reported on the governor’s plans earlier this year, which he detailed in a presentation to cabinet members on his 2022 legislative agenda. These plans also included pay raises for state employees and a hands-off approach to COVID policies. The news outlet obtained the presentation through an open records request. 

(Photo via Flickr)

Last summer the Missouri Supreme Court ruled against a previous effort by the governor to increase fees. The case was brought in 2018 by Elad Gross, an attorney and former Democratic candidate for attorney general investigating dark money support for former Gov. Eric Greitens. Gross was charged $3,618.40 for documents requested through the governor’s office. The state Supreme Court voted against Parson 6-0, stating, “A public records request may be fulfilled without any attorney review time.”

Missouri State Rep. Bruce DeGroot is attempting to undo the court ruling by changing the Sunshine Law itself. The bill, which critics say would “gut” the Sunshine law, is currently pending before the state legislature. DeGroot has said he worked with Parson’s office on the substance of the proposal, which would allow a government agency to charge a member of the public the hourly rate of the lowest paid attorney used to conduct research or review requested records.

“If the law successfully changes the Missouri Supreme Court opinion, you’re probably talking about $80-$120 an hour if it’s inside counsel or an outside counsel at $200 an hour,” said Lewis Rice lawyer Joseph Martineau in a telephone interview. Ordinary citizens and the media will pay several thousand dollars for documents that need to be reviewed by counsel. 

The governor argues that the fee increase is necessary because state employees have to review the request, sometimes through government lawyers and sometimes with outside firms.

Under Missouri’s Sunshine Law citizens and reporters file Sunshine requests for information through the Missouri Attorney General’s Office. 

But because that office serves as counsel for the state, there is a potential conflict of interest when individuals submit Sunshine requests to the AG’s office. 

“I don’t think anyone should be under any illusion that the attorney general is going to enforce the Sunshine Law against any state agency. They’re just basically never going to do that,” Andy Hirth, who served as deputy general counsel in the attorney general’s office under Democrat Chris Koster, told St. Louis Public Radio. “They’re always going to defend the state agency, because that is their primary responsibility.”

Attorney Mark Pedroli is the founder of the Sunshine and Government Accountability Project, which has been involved in substantial litigation within Missouri. Pedroli told GJR that sunshine laws are valuable because they eliminate secrecy in the government.

In 2017, Eric Greitens was Missouri governor when the Kansas City Star revealed he and his office were using the app Confide, which causes text messages to disappear. A citizen filed a Sunshine Law request seeking to find out who was using the app — and whether the messages could be seen like any other record of governance. When the governor’s office failed to respond in a timely way, Pedroli filed suit and found that at least 27 Greitens staffers were using Confide. 

Cole County Judge Jon Beetem found that Missouri’s Sunshine Law only applies to government records that have been retained, while disappearing text messages cease to exist soon after arrival. Private citizens, Beetem wrote, had no right to sue over them.

The problem is that “you can’t report a story if you don’t know anything about what’s going on due to lack of data,” said Sandra Davidson, a former media law professor at the University of Missouri School of Journalism. 

Missouri Sen. Josh Hawley, who was the state’s attorney general at the time, launched a probe into the use of Confide, interviewing Greitens’ staffers, He ultimately opted not to interview Greitens and found no violation of state law in his investigation.

Special interest groups that want close relationships with politicians want to secretly communicate with politicians, Pedroli told GJR. 

“I think there’s so much dark money around Governor Parson and there are so many lobbyists and consultants involved with him that they all want secrecy to run with his dark money donations,” Pedroli said. 

Elizabeth Tharakan is a PhD student at Southern Illinois University Carbondale, where she studies Mass Communication and Media Arts. She is also an attorney licensed in Missouri, Colorado, New York and the District of Columbia.