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Is the Missouri House violating transparency requirements? Appeals court will decide

A Missouri appeals court is weighing whether a Missouri House rule allowing lawmakers to keep some documents secret violates a constitutional amendment approved by voters.

The Missouri Court of Appeals Western District held oral arguments on Tuesday over House Rule 126, which says legislators can “keep constituent case files, and records of the caucus of the majority or minority party of the House that contain caucus strategy, confidential.”

Lawmakers adopted the rule after voters approved a constitutional amendment called Clean Missouri in 2018 that made the General Assembly subject to the Missouri Sunshine Law. Mark Pedroli, a St. Louis-based attorney who often works on government transparency issues, has sued to overturn it.

“The immediate response to that was to pass their rule. It was a defiance,” Pedroli told a three-judge panel of the appeals court in Kansas City.

While Pedroli’s Sunshine and Government Accountability Project first sued over the House rule more than four years ago, the case is before the appeals court amid a turbulent moment in the chamber. House Speaker Dean Plocher, a St. Louis area Republican, has been enmeshed in controversy this fall after acknowledging he received government reimbursements for expenses paid for by his campaign

Pedroli’s 2019 lawsuit was spurred by a St. Louis Post-Dispatch story that reported that Missouri lawmakers were getting letters—purportedly from constituents—asking them to support legislation making it harder to file lawsuits against out-of-state companies. Many of the constituents later contacted by the newspaper said they never sent the letters, however.

Pedroli sent Sunshine requests to House members, asking for emails similar to those sent to Missouri elected officials without the knowledge or consent of constituents. Some legislators produced the emails, according to the lawsuit. Others refused to produce the records without redacting email and postal addresses of the purported authors.

Marc Ellinger, an attorney representing the House, argued the House could have gone further in restricting access and that lawmakers could have refused to provide the records at all.

“The documents were produced and very limited redactions” were made, he said.

Ellinger also said that while Clean Missouri made legislative records public records, they didn’t automatically make them open records. He emphasized that public records are not the same as open records.

The amendment says legislative records “shall be public records and subject to generally applicable state laws governing public access to public records, including the ‘Sunshine Law.’”

Cole County Circuit Court Judge Jon Beetem in January ruled in favor of the House, writing in his decision that the Sunshine Law allows some records to be protected, and only gives access to open and public records.

The appeals court judges on Wednesday gave few indications about which way they were leaning. Whatever the appeals court decides may eventually be appealed to the Missouri Supreme Court.