Judge dismisses lawsuit alleging Missouri School Boards Association violated Sunshine Act • Missouri Independent

On Monday, a Boone County Circuit Court judge sided with the Missouri School Boards’ Association and dismissed a lawsuit that argued the organization was subject to open records laws. State.

The Southeastern Legal Foundation, a Georgia-based nonprofit that filed the lawsuit, argued that the Missouri School Boards’ Association (MSBA) violated Sunshine Law by failing to respond to a request for March records. for documents and communications related to school board meetings, including from its former parent organization.

The lawsuit alleged that the MSBA, which supports school boards through training and also advocates on their behalf before the legislature, was a quasi-governmental agency subject to law.

However, the MSBA noted that it was a private, nonprofit organization that was not created by act of a government entity, a point Judge J. Hasbrouck Jacobs disagreed with. agreement after a hearing of about 35 minutes on Monday.

“I read this law as clearly as I can, and I think the definition of a public government body means that it must be created by a legislative, administrative or governmental entity,” Jacobs said. “…I will therefore accept the motion to dismiss.” »

Jacobs gave the Southeastern Legal Foundation 10 days to amend their pleading before issuing a final judgment. Braden Boucek, director of litigation for the Southeastern Legal Foundation, told Jacobs he didn’t anticipate they would invoke the option.

“We don’t think we can argue that they were created by some kind of governmental act,” Boucek said.

Chuck Hatfield, an attorney who represented the MSBA, said the Southeastern Legal Foundation’s position could have opened the door to the argument that many other organizations, like the Missouri Sheriffs’ Association or the Missouri Municipal League, should also be submitted to the open files of the State. laws.

“There are a lot of associations out there that I don’t think the Legislature wanted to cover that aren’t currently following the Sunshine Act,” Hatfield said. “And there are good reasons for that.”

The Southeastern Legal Foundation complaint was filed in Apriljust over a month after Missouri Attorney General Eric Schmitt’s office filed a similar lawsuit against MBAS. Schmitt’s lawsuit also argues that the MSBA is subject to the Sunshine Act, and some of the language used in the two lawsuits is nearly identical.

The MSBA also requested that the case be dismissed, which has yet to be heard by Boone County Circuit Court Judge Kevin Crane.

“I expect him to defer to what Judge Jacobs did here and enter the same order in this case,” Hatfield said after Monday’s hearing.

A spokesperson for the attorney general’s office did not immediately respond to a request for comment Monday morning.

As part of its efforts to determine whether the Southeastern Legal Foundation was properly registered to do business in Missouri, the MSBA had previously requested, through the discovery process, documents from the foundation regarding its registration as a charity, to determine whether the foundation had solicited donations from Missouri donors and all of its communications with the attorney general’s office.

The foundation opposed all MSBA requests.

Emails previously obtained by The Independent via an open records request showed that the Southeastern Legal Foundation and Schmitt’s office communicated for months before the lawsuits were filed.

The Attorney General’s office originally contacted the foundation in September 2021 regarding the foundation’s ongoing federal lawsuit against Springfield Public Schools. Later, at the urging of the Southeastern Legal Foundation, Schmitt’s office issued seven subpoenas to school districts and a civil investigation request to an education consultant demanding more information about the student surveys used. .

The Southeastern Legal Foundation has previously said that Schmitt’s office did not advise the foundation on its request for records or its lawsuit against MSBA and that a call in March with Schmitt’s office sought to confirm whether a 1988 notice from the Attorney General’s office still reflected his office’s legal conclusion that MSBA is subject to the Law of the Sun.

On Monday, Boucek argued that the MSBA’s role in training school board members, receiving funds from taxes and be specifically named in state lawsrequires transparency.

“MSBA is exactly what the legislator wanted when considering making a quasi-public definition applicable to private creatures,” Boucek said.

Browse designations of a “public government body” described in state lawHatfield noted that the examples listed were created by government action, such as an executive order or statute, and therefore the term “quasi-public government body” should be read the same.

“There is no allegation that they were government officials, no allegation that was an order, no allegation that was a law,” Hatfield said. “Without this allegation, we do not believe it sets out a claim.”

But Boucek argued that quasi-public bodies need not have been created by government action before being subject to Missouri’s open records laws.

Preventing the Sunshine Act from extending to private entities that were not created by governmental action could lead the government to “circumvent its duty of public transparency”, Boucek said, citing instances where governments can initiate private companies to operate prisons or transport services.

“And in all of these cases, these are cases where we would expect a proportionate duty of transparency when these governments hire outside private entities to perform government functions,” Boucek said.

Jacobs said he understands he “won’t have the final say on this,” and in a statement after Monday’s hearingBoucek said the foundation is considering appealing.

“Since 1988, when the Missouri Attorney General determined that the MSBA was subject to the Sunshine Act, it has been widely accepted that agencies like the MSBA that perform public functions owe the public full transparency,” Boucek said in a statement. communicated.

Hatfield said he hopes the Southeastern Legal Foundation ultimately chooses not to.

“I kind of hope that kind of puts an end to it,” Hatfield said, “and that they realize that it’s really not a good use of anybody’s resources.”