The Missouri legislature is subject to the state’s open records law, meaning the public can request their official communications. But nothing stops lawmakers from deleting those records before that happens.
Missouri’s Sunshine Law requires most public records, including messages, to be available to the public. While the position of both chambers of the Missouri legislature was that it didn’t apply to them, Missouri voters affirmed in 2018 that it does through the Clean Missouri amendment.
But there aren’t laws that say how long lawmakers have to hold on to those records, giving them a way to sidestep handing them over.
“If there's no record, there's nothing to produce, they say that they're not violating the law,” said Kansas City lawyer Mark Johnson, who practices First Amendment Law and teaches at the University of Kansas.
The State Records Commission sets specific records retention and destruction schedules for state and local agencies. For example, all state agencies have to keep employee evaluations on hand for five years. But legislators can set their own rules.
With 197 lawmakers in the Missouri statehouse, that means there could be 197 different policies on retaining emails. When asked by KBIA, many staffers and secretaries said their emails delete automatically after two weeks.
That’s the case for Sen. Mike Henderson’s (R-Desloge) office. Henderson sponsored a bill that would exempt the information of major water users – entities that can use 100,000 gallons per day – from being subject to the Sunshine Law. Large agricultural groups, including the Missouri Soybean Association, spoke in support of the bill at its public hearing.
When KBIA requested more than a year’s worth of emails between Henderson’s office and the Missouri Soybean Association to track the group’s influence on the bill, the office requested $39.90 in fees. After confirming the payment, the office sent back just two emails from the Missouri Soybean Association, which contained talking points for the bill.
“Per our conversation, below are some talking points for the Senator to reference when presenting the bill next week. Please let me know if, or the Senator, have any further questions. Appreciate your all’s willingness to help us with this one!” wrote Missouri Soybean Association Director of Policy Benjamin Travlos to a member of Henderson’s staff.
The office also included a note: “For future reference, please be advised that Senator Henderson’s office has a retention policy of 2 weeks.” Neither the Missouri Soybean Association, nor Henderson’s office, responded to requests for comment.
“It's not a Sunshine Law problem, it's a records retention problem, and those are two different laws,” Johnson said. “But you don't find out about the records retention problem until you try to use the Sunshine Law to get something and they tell you ‘we don't have it.’”
Similar practices have been held up in court. Former Missouri Governor Eric Greitens used a messaging app called Confide while in office, which immediately deleted messages. After those records were requested and couldn’t be produced, his office was sued for violating the Sunshine Law. In 2022, the Missouri Court of Appeals, Western District, ruled in favor of Greitens.
“The Sunshine Law only requires that governmental agencies provide access to records then in existence, and in the agencies’ possession or under their control,” wrote Judge Lisa White Hardwick in the ruling.
The appeals court acknowledged how the technology allows officials to side-step the Sunshine law.
“It may be time to ‘update’ Missouri's Sunshine Law that was originally enacted in 1973—well before cellular phone technology existed and, likewise, well before ephemeral messaging applications existed. But, it is not within the power of the judicial branch of government to “create” statutory law; that power is vested with the legislative branch of government,” the ruling said.
“As you might guess, the legislature has not taken up that invitation,” Johnson said.
Henderson’s bill about water users isn’t the only one this session that would add more exemptions to the Sunshine Law. Another seeks to protect endangered species by closing any meetings that discuss them.
“Every year, well-meaning people try to create more exemptions, and they chip away at the power of (the Sunshine Law),” said Mike Jenner, a former journalist who was an editor at the Columbia Missourian.
“I'm a big believer in sunshine and transparency,” Jenner said. “I have an interest as a journalist, but really the Sunshine Act is for the people. Anyone can file a Sunshine Act request, and anyone can, I mean, should, be able to get public records that are not covered by an exemption.”
Both bills passed out of committee but neither have been heard on the floors of their respective chambers. With the legislative session in its last weeks, it's unlikely they will pass. Jenner testified against both.
