A small paper scores an open-records win in a recovering city

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KANSAS CITY — Voters in Joplin, MO, the small Midwestern city still recovering from a 2011 tornado, went to the polls earlier this week, and a council member who’s been at the center of a local controversy won re-election to his seat.

But before that, The Joplin Globe scored a victory of a different sort: The paper secured a court order that upheld an expansive reading of the state’s Sunshine Law and forced the complete findings of a municipal investigation into public view before Election Day.

After obtaining the records–nine previously-withheld pages of the investigator’s report, plus hundreds of pages of testimony transcripts–on the Friday before the election, the paper turned out a series of stories based on the documents. Newsroom staffers also worked through the weekend to upload the entire packet of information to the paper’s website, so the local residents could access the information before the election. (Disclosure: I was a staff writer at the Globe from 2007 to 2011.)

The documents were not altered or even reviewed prior to upload, said Carol Stark, the Globe‘s editor in chief, because the paper has “a responsibility to deliver it to the public the same way it was delivered to us.

“It gives them the ability to make their own informed decisions, which we think good government should be about,” she said.

A public controversy

The investigation that led to the report began last fall, following months of controversy involving mayor pro tem Bill Scearce, former mayor and current councilman Mike Woolston, who was up for re-election this week, and then-city manager Mark Rohr.
On Oct. 21, 2013, the city council hired Thomas Loraine, an outside attorney, to conduct a probe focused on three issues: Scearce’s connection to an FBI investigation into illegal bookmaking, Woolston’s business relationships with a local realtor and the master developer hired to help rebuild the city following the devastating 2011 tornado, and a handwritten note that Rohr alleged was taken off his desk without permission. The cost of the investigation was capped at $45,000, and the agreement stipulated that Loraine’s report “shall be an open record made available under Missouri’s Sunshine Laws.”

At some point, the investigation took a turn to focus on Rohr’s leadership style. And at a Feb. 4 meeting, a split council voted to fire Rohr.

Following the meeting, the council released a portion of Loraine’s report, which exonerated Scearce and recommended that Woolston, a realtor, either “divest his interests [in the tornado-damaged zone] or resign from the council.”

But the city withheld the portion of the report pertaining to Rohr, along with transcripts of testimony given to Loraine. Those transcripts included interviews with Woolston and other members of the council who were seeking reelection. They also shed light on ongoing politicking within the council–on August 2013, an earlier attempt to remove Rohr had failed by one vote.

It was the decision to withhold that material that the paper challenged, first through negotiation, and then, on Feb. 24, with a lawsuit.

Stark, the Globe’s top editor, said that finding out how the investigation turned from probing the activities of two council members to examining Rohr–and how the cost ended up ballooning to roughly $80,000–was a key question the paper hoped to answer.

“At no time did the council authorize it to go another way,” she said. In the shortened version of the report, “we don’t really get to the heart of those charges, a city manager gets fired and the taxpayers get stuck with a bill almost twice what they were expecting.”

‘Liberally construed’ versus ‘strictly construed’

While the paper wanted to uncover why the focus of the investigation had pivoted to Rohr, the city cited that very shift as its justification for withholding a portion of the report. While the contract stipulated that Loraine’s report would be a public record, said city attorney Brian Head, “it was not anticipated at the time the agreement was drafted that the investigation would include an investigation of the City Manager.”

“It was and continues to be the belief of this office that the portion of the report relating to Mr. Rohr was personnel in nature and should have remained confidential,” Head wrote in an email response to CJR.

Missouri’s Sunshine Law does have a “personnel exemption” among its 23 exceptions. A second exemption dealing with “individually identifiable personnel records” was cited by the city as justification to exempt the transcripts, testimonies, and supporting evidence.

But the law also states that rules regarding public records “shall be liberally construed and their exceptions strictly construed” in favor of open government. That was the foundation of a ruling by Jasper County Circuit Court Judge David B. Mouton that the Globe was entitled to the portions of the report the city withheld. (After considering an appeal, the city council decided to accept Mouton’s ruling.)

“Judge Mouton correctly found that neither of the narrowly construed exceptions applied to trump Missouri’s liberal openness requirement,” William Peterson, one of the attorneys who represented the Globe in court, wrote in an email to CJR. “The report was generated as a result of an investigation into elected officials and did not concern human resource issues of any public employee.”

Separate from the court proceedings, the state’s Attorney General’s Office is reviewing three complaints from citizens regarding the council’s actions under the Sunshine Law, according to spokeswoman Nanci Gonder. The fine for a “knowing” violation is up to $1,000, while a “purposeful” violation carries a $5,000 penalty. “Educating public bodies on their responsibilities under the Sunshine Law is an effective approach and, in some instances, may be helpful in demonstrating a knowing violation if complaints persist,” Gonder added.

No new case law established

Judging by Tuesday’s election results, the dismissal of Rohr may have been a bigger deal to voters than any suspected misconduct by council members–and voters may have been supportive of the city manager, or at least opposed to the effort to dismiss him, despite the allegations against him.

Five of the city’s nine council members were up for reelection. Three who had backed Rohr on both occasions–including Woolston–were reelected. Two who twice voted to have the manager removed were defeated.

And what about the impact for open government and records-access in Joplin, and elsewhere in Missouri?

For his part, Head, the city attorney, said he believes the ruling “will certainly negatively impact the ability of governmental entities in Jasper County to properly maintain confidentiality of personnel records.”

“The court decision and the resulting decision of the City Council does great harm to the ability of a local governmental entity to get complete and honest testimony in future investigations,” he said. “Our office and the City is committed to following the Missouri Sunshine law precisely… We must, in the future insure that we not only provide documents when required but that we also protect confidential records when allowed by law even when it is politically incorrect.”

Stark, the Globe’s editor, said the paper doesn’t take records disputes to court lightly. “It’s expensive, it generates bills for the taxpayer,” she said. “But when you get to a point where you cannot get any further, that’s when you have to go to court.”

In a recent commentary in the Globe, she called on Missouri to develop the sort of public council that other states have to help mediate records conflicts before they reach the litigation stage–and reduce costs for both local governments and news outlets. (Support from the Globe’s parent company, Community Newspaper Holdings, Inc., of Montgomery, AL, allowed the paper to pursue the records dispute, Stark said. The final bill for the lawsuit hasn’t been released.)

As for the legal implications, Jean Maneke, an attorney for the Missouri Press Association who was not involved in the litigation process, said was “excited for the Globe,” and “happy they pursued it because it’s not cheap to pursue something that is a matter of principle.”

However, Maneke said, the impact of the court ruling will be limited, since decisions at the circuit court do not become binding case law. “A Circuit Court decision only has some value in that circuit,” she said. “It has no [authority] over the appellate court, and it can’t guarantee you that it would persuade any other Circuit Court judge.”

While the ruling may not be legally binding outside of Jasper County, Peterson, the Globe’s attorney, said the decision may still have ramifications for local governments or the news organizations that cover them.

“It is important because it will have persuasive force in the future because courts are responsive to well-reasoned and cogent arguments in judicial decisions,” he said. “This precedent will be one that can be cited by media throughout Missouri and elsewhere for the principle that openness should be the norm.”

A small paper scores an open-records win in a recovering city

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