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Lawsuit claims auditor, senator violated Sunshine Law

July 22, 2017 at 5:05 a.m. | Updated July 23, 2017 at 12:28 a.m.

A Kansas City-based group this week accused state Auditor Nicole Galloway and state Sen. Rob Schaaf of violating Missouri's Sunshine Law.

The Missouri Alliance for Freedom complained in both lawsuits that Galloway and Schaaf failed to comply with public records requests the group submitted in May.

MAF frequently advocates for reducing taxes and government spending, describing itself in the lawsuits as a tax-exempt Missouri corporation that "accomplishes its purpose in part by shedding light on government activities through public records requests."

Both lawsuits were filed by Edward D. Greim and J. Benton Hurst of Kansas City's Graves Garrett law firm.

The "Graves" in the law firm is Todd Graves, current chairman of the Missouri Republican Party and a supporter of Gov. Eric Greitens.

Galloway, a Democrat, was named auditor in April 2015, after Tom Schweich, a Republican who had been re-elected in November 2014, committed suicide in February.

Schaaf, R-St. Joseph, criticized several of Greitens' proposals this year, especially after Schaaf was targeted by the nonprofit group A New Missouri, which is allowed to take donations without revealing the donors' identities.

Both lawsuits were assigned to Circuit Judge Jon Beetem.

In the Galloway lawsuit, MAF tells the court it made three separate requests for documents, and the auditor's office had not met the deadlines in the Open Meetings/Open Records law for producing those documents.

In all three requests, the MAF lawsuit said, the auditor has acted unlawfully in refusing to produce the requested records.

Gena Terlizzi, Galloway's spokeswoman, told the News Tribune: "We disagree with the unfounded claims made by Missouri Alliance for Freedom. We will continue to follow the Sunshine Law and are focused on the work of the office to get results for the citizens of Missouri."

In its separate lawsuit against Schaaf, MAF said it asked to inspect email correspondence from Schaaf's Senate account, but the senator "has closed almost all records of his correspondence retained by the Senate in its email system," even though "Schaaf has no basis to close these records under the Sunshine Law."

Schaaf did not respond to a request for a comment for this article.

Auditor requests

The MAF lawsuit said it first made a request May 2 for "all records relating to Galloway's audit of the Missouri Department of Revenue, including a subpoena that Galloway had issued to the (department), all records relating to Galloway's decision to audit the department (and) all records of communications within the Auditor's Office or between the Auditor's Office and others relating to the audit."

The lawsuit said the auditor's office provided a copy of the subpoena and three letters, then told the MAF all other records relating to the Revenue audit were confidential under various sections of state law.

The lawsuit argued the auditor's "assertion of confidentiality is overbroad," since none of the sections of law protect "records relating to your decision to audit the timeliness of the Department's issuance of tax refunds" or "protect from disclosure records of communications between her office and third parties."

The lawsuit said MAF also asked for records relating to two audits of the state treasurer's office through Jan. 9, the end of former Treasurer Clint Zweifel's term.

But, other than providing a copy of the April 2017 audit report, the lawsuit said, Galloway's office again said "the remaining requested information is confidential" under state law.

MAF's third request, submitted May 26, asked Galloway for "all records of communication you have sent or received while serving as Auditor."

The lawsuit said no records were provided other than "reports of audits and press releases that appear on the Auditor's website."

The four-count lawsuit seeks a $5,000 civil penalty on each count, plus MAF's costs and attorneys' fees.

Schaaf records

The MAF lawsuit said its request to see the senator's emails was sent to his official Senate account but was forwarded to his personal address - and he responded from that address, saying "he refused to produce any correspondence at all, claiming that he is 'exempt' from the Sunshine Law."

And, the lawsuit said, Schaaf told MAF, "I imagine, given the social media activity of your group, that were I to request your donor list, you would demur as well."

The group said it specifically asked Schaaf for communications between Schaaf and his staff and lobbyist Richard McIntosh or others at the firm Flotron McIntosh, as well as communications with eight other organizations, including Common Cause, Public Citizen and the Missouri Ethics Commission.

In its lawsuit, MAF argued: "These records belong to the Senate and are retained by Schaaf on behalf of the Senate. He has no basis to close them."

Over the years, a number of lawmakers have argued the House and Senate are public governmental bodies whose records are open under the Sunshine Law, but as individuals, they are not required by law to release their individual emails.

In addition, some lawmakers argue, constituents contact them by email with private matters and issues that should not be available to the public.

Nevertheless, MAF argues the Senate's email accounts are public records, and senators' use of private accounts allows them to conduct public business without allowing the public to have access to that business.

The three-count lawsuit seeks $5,000 in civil penalties on each count for Schaaf's "purposeful" Sunshine Law violations, plus MAF's costs and attorneys' fees.

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