You think that I don’t even mean A single word I say It’s only words And words are all I have

    After having given three interviews already on the report by Attorney General Chris Koster on his investigation of a potential sunshine law violation within the Department of Natural Resources over the release of the May E.coli report for the Lake of the Ozarks area, I’ve finally had a chance to read the report for myself.

    Readers, if there’s a lesson to be learned from this experience, it’s that it is critical to indicate to whomever your request is going to that it is a Sunshine Law request.  The sample form in the booklet published by the AG’s office begins by saying “This is a request for records under the Missouri Sunshine law, Chapter 610, Revised Statutes of Missouri.”  There’s probably no reason for you to be creative… the form works just fine.

    This language is critical because of the holding of the Western District Court of Appeals in 2003 in the case of Anderson v. Village of Jacksonville.  There, the court  held that the statute does not specifically require that the request be in writing, but the statute does require that the communication express a request for access to a public record, among other things.

    I cannot say the report written by Ted Bruce, whose knowledge of the sunshine law is solid, is wrong.  Based upon what he was told, I cannot dispute that “No individual or organization made a request for information that was intended as, or should have been interpreted by DNR as, a Sunshine Law request,” if one looks at the statements he received in response to his investigation.

    However, I believe perhaps some of those responders might have benefited from the advice of counsel.  I suspect some may have thought Mr. Bruce was asking if the request had been put in writing, as opposed to being an oral request.  Or perhaps they failed to point out that they had been engaged in discussions for many many years with their contacts within the department, who understood that EVERY request being made was a Sunshine Law request, but due to the familiarity of the parties, was being made orally rather than formally in writing.

    The Sunshine Law doesn’t require requests to be in writing — that’s been understood for a long time.  After a while, when you and I communicate on a regular basis, particularly when it is oral rather than written, we all drift from the formalities.  When reporters walk into the police station and ask to see the arrest log for the last 24 hours, how many say to the staff, “This is a request under the sunshine law for access to your arrest log?”  Probably none.  It is just understood.

    I suspect this is the case with some of the media contacts that are documented in Mr. Bruce’s report.  Perhaps some assistance of counsel might have caused the media to more clearly explain these relationships to him and perhaps his conclusions might have been different because he was looking at a different set of facts.

    Alas, based upon what he has placed on paper, the conclusions are made and the report is written.

    And so, ladies and gents, take one lesson from this E.coli-y report…sure, it’s fine to make your Sunshine Law requests orally rather than on paper.  Just don’t forget to invoke your Sunshine Law as the first words out of your mouth in doing so.  Repeat after me: “Hail Sunshine law, full of grace, please send me those reports as soon as possible.”

    And always consult with counsel before making a statement to a governmental official!