Missouri's open records act doesn't stipulate that citizens must invoke the words "Sunshine Law" when requesting information from their government.
But Attorney General Chris Koster concluded last week the Department of Natural Resources did not violate the law in delaying the release of a report showing high levels of E. coli in Lake of the Ozarks, even though citizens and journalists had made multiple requests for the information.
The Sunshine Law was not violated because nobody invoked the act in their written and oral requests, Koster said.
Koster's conclusion has prompted criticism from open-government advocates who say the state's chief enforcer of the Sunshine Law may have just made it harder for the average person to gain access to public records.
Apparently, "you have to put the little sticker on the top that says 'Sunshine request,'" said Charles Davis, executive director of the National Freedom of Information Coalition in Columbia. "There is absolutely no legal basis that I can see for stating that something should be ostensibly labeled with some magic label."
Davis said the new "magic" words to obtain public records appear to be "Sunshine Law request."
"Making them utter three magic words is going to stifle a lot of public access," said Davis, an associate journalism professor at the University of Missouri.
Koster, a Democrat, defended his investigator's conclusion that there was "no evidence that any person made a formal or informal request that should have been interpreted by the department as a request under the Sunshine Law."
"I don't think that there is a specific set of words that has to be used to activate the Sunshine Law," Koster said Friday in an interview.
Internal e-mails from DNR show reporters from the Lake Sun Leader newspaper in Camdenton and volunteers with the Lake of the Ozarks Watershed Alliance made multiple inquiries about when the test results would be made public throughout June.
LOWA volunteers collected water samples on May 26, and the results were available two days later, but the data was not made public until June 26. The tests found E. coli levels exceeded the federal limit for safe swimming at 29 of 55 testing sites in a section of the lake.
Meanwhile, DNR's division of state parks closed two public beaches on Lake of the Ozarks during part of June because of high levels of E. coli, and the agency's top brass barred the division of field services from releasing its own report showing high levels of the harmful bacteria in the water.
Since this was the third year of a five-year study of the lake's health, the reporters and LOWA volunteers had come to expect the results would be released within five days of the testing, as was the practice under former Gov. Matt Blunt's administration.
Plus, DNR had created an e-mail service for this specific project, allowing citizens and news organizations to sign up for what they believed was a standing electronic request for the test results as soon as they were available.
"There was an expectation created that once the water samples were given to DNR that there would be a sort of automatic release of the information," said Ken Midkiff, chair of the Missouri Clean Water Campaign and the Columbia resident who filed the Sunshine Law complaint with Koster's office.
Midkiff said since the "magic words" (Sunshine Law request) were not invoked, Koster has effectively "exonerated" DNR officials in the scandal.
In his cover letter to Midkiff on Thursday, Koster said his office "reserves the right" to change its findings should any new information come to light from a state Senate committee conducting its own investigation of the E. coli report's delayed release.
Despite the paper trail and phone calls from LOWA's executive director, Donna Swall, Koster's investigator, Ted Bruce, concluded, "no employee of DNR understood that a Sunshine request had been made and that no non-governmental party subjectively believed that they had made a Sunshine request."
"We did not see anything that was of sufficient clarity that a reasonable government employee or a reasonable person should have had the Sunshine Law triggered in their mind," Koster said.
But open government advocates say state employees should interpret any request for information by the public as a request for records under the Sunshine Law, which is found in Section 610 of Missouri's revised statues.
"You don't have to invoke the law. You should just be able to ask and if it's public information, it should be put out there," said Jonathan Groves, a journalism instructor at Drury University and member of the Missouri Sunshine Coalition.
The Sunshine Law doesn't distinguish between a formal request and informal request or whether a request must be made in writing, Groves said.
Communications maze
Groves said the delay in releasing the E. coli data is more of an organizational breakdown on DNR's part than a Sunshine Law issue.
In his probe, Bruce found DNR has 40 different custodians of records throughout the agency's expansive bureaucracy.
In the case of the E. coli report, inquiries by journalists and Swall were made by phone or e-mail to a low-level DNR employee, who was instructed to forward them on to the department's communications director, Susanne Medley, who was involved in the four-week-delayed release.
Bruce recommended the agency consolidate this system to make it easier for the public to navigate the bureaucracy.
"It seems that DNR would be better served by identifying a single individual whom the public may contact as a custodian of records for all Sunshine requests," Bruce wrote in the report.
Part of the breakdown at DNR was that the water testing division employees who were contacted were not the custodians of record, who are charged under the Sunshine Law with handling requests from for information.
Koster said Friday that DNR should better train its employees to treat all inquiries for information from any member of the public as if it's a request for records governed by the Sunshine Law.
"I think there are a number of steps that government can take to improve that process and make sure the right set of ears is listening to the issue," Koster said.
State Sen. Kurt Schaefer, a member of the Senate committee probing DNR's actions, was general counsel of the agency during the Blunt administration.
"Historically, I don't think the department has ever had a problem understanding what a Sunshine Law request was," said Schaefer, R-Columbia. "If the Sunshine Law needs to be amended to provide clarification that previously wasn't necessary, then that's something we'll have to evaluate in the committee."
Invoking Sunshine Law shouldn't be required for public records, they say.
