Missouri Attorney General Claims The First Amendment Allows Him To Withhold Public Records

from the I'm-not-familiar-with-the-type-of-thing-I'm-seeing dept

Missouri's government is flexing the weirdest right now. The state's Attorney General is currently in court trying to keep public records out of the public's hands. This doesn't actually stem from a public records lawsuit, but from a discovery request in a defamation lawsuit filed by a former mayor against a state representative.

Ex-Scott City mayor Ron Cummins is suing state rep Holly Rehder for defaming him while he was still in office. His discovery request has been greeted with this baffling assertion by the Attorney General. (h/t Peter Bonilla)

Cummins' attorney requested communications from constituents making complaints to Rehder’s office.

Schmitt's office, which is representing Rehder, argued last week that turning over those records would “violate the First Amendment rights of the constituents that made complaints.”

That's… not something the First Amendment protects. It protects their right to make complaints, but doesn't protect the state's right to withhold documents. In fact, the state has no First Amendment rights. Those belong to the people, like those Schmitt disingenuously is pretending to shield from someone suing a politician over allegedly-defamatory statements.

The governor's office backed this dubious assertion by saying something weird about chilling effects.

The governor’s office defended the policy, saying citizens would not reach out to their elected officials if they believed information like email addresses and phone numbers could become public.

I don't think that's how this works. For one, most people realize that communicating with government entities turns those communications (in most cases) into public records. For another, citizens cannot create chilling effects. Some people may be wary of communicating with the government for many reasons, but if there's any chill, it comes from the government's obligations to the public, not from public records requests.

That the governor would back this baffling gambit isn't surprising considering the governor himself has some pretty strange ideas about how the First Amendment works. This happened earlier this year:

As state lawmakers continue their push to carve out new exemptions in Missouri’s open records laws, Gov. Mike Parson has seized on a new strategy.

His office is redacting information from public records citing the First Amendment of the U.S. Constitution.

TIL: those black markers are called "First Amendments."

Steele Shippy, Parson’s communications director, said the office uses the First Amendment to redact telephone numbers, addresses and email addresses of private citizens who have reached out to the governor’s office.

Such is the state of the First Amendment in the Missouri state government. The First Amendment gets used to withhold public records and make unjustifiable redactions. And then I guess it gets put back in the drawer until the next time the government needs to use the First Amendment for something. The same incomprehensible claims were made about the chilling of speech in this case, too.

There is some good news, though. The state AG has officially withdrawn his insane First Amendment assertions.

Missouri Attorney General Eric Schmitt has withdrawn a legal brief he filed arguing that the First Amendment allowed him to withhold some public records concerning private citizens involved in a lawsuit.

Schmitt said in a statement Tuesday that his office determined after further review that the assertion should be withdrawn.

"Upon further review" says the AG, implying it ever received a first one. As was pointed out by people who actually understand the First Amendment, the legal brief cited no case law to support this peculiar free-speech-by-redaction argument because no such case law exists. Perhaps the AG should rush these findings to the governor's office before any more public records are subjected to the state's First Amendment scalpel.

Filed Under: 1st amendment, attorney general, discovery, eric schmitt, holly rehder, missouri, public records, ron cummins, transparency


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  • icon
    James Burkhardt (profile), 26 Aug 2019 @ 9:42am

    I would somewhat disagree. Redacting the public display of communication details of individuals complaining to the government could certainly improve the willingness of people to make complaints, much as we support anonymous speech complaining against the government. Otherwise that information, necessary to make a complaint, could be used by bad faith actors as part of a doxxing campiagn.

    However, such redactions shouldn't prevent the release of documents otherwise valuable to the public.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 26 Aug 2019 @ 9:46am

      Re:

      Why not just allow anonymous complaints?

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 26 Aug 2019 @ 9:48am

      Re:

      Even though I agree with your point, it is important to note that the First Amendment would absolutely not be the law that supports that decision. Right to privacy, not right to speak.

      The argument the Missouri Government tried to make there is especially weak when you consider that federal complaint forms -- such as the FCC! -- are entirely publicly listed, not even needing a lawsuit to force discovery.

      reply to this | link to this | view in chronology ]

      • icon
        James Burkhardt (profile), 26 Aug 2019 @ 10:36am

        Re: Re:

        The right to privacy has been noted several times by the courts as integral to the exercise of freedom of speech. Curtailing the right to privacy is regularly cited as a means of curtailing freedom of speech. The rights implicate each other. My assertion was that the citation of the 1st amendment was in fact a shorthand to these rulings, that the government's effort to claim a need to protect privacy in a complaint was in fact an effort to cultivate robust free speech activity. I agree the argument is bullshit, but it is not the blatant one suggested.

        reply to this | link to this | view in chronology ]

    • icon
      Stephen T. Stone (profile), 26 Aug 2019 @ 9:59am

      Redacting the public display of communication details of individuals complaining to the government could certainly improve the willingness of people to make complaints

      To wit: Atheists and people of minority faiths might want to keep their communication details secret(-ish) if they want to make public complaints about government officials in re: issues of separation of church and state.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 26 Aug 2019 @ 4:19pm

        Re:

        Wait... why? I'm not ashamed to be atheist.

        reply to this | link to this | view in chronology ]

        • icon
          That One Guy (profile), 26 Aug 2019 @ 11:39pm

          Re: Re:

          Because, as unfortunate as it is, there very much are places where whether or not you're religious(and/or what religion) can very much impact your life and interactions with those around you, such that someone being outed as an atheist or a member of the 'wrong' religion could suffer notable negative consequences.

          reply to this | link to this | view in chronology ]

          • icon
            Stephen T. Stone (profile), 27 Aug 2019 @ 8:24am

            And this goes double when it specifically pertains to an atheist filing a complaint about a church/state issue regarding the majority religion — e.g., an atheist filing a grievance against a city council for having clearly religious invocations, all led by Christians, before all of their meetings. What the atheist wants is neutrality from government (e.g., that the government either allows people of all religions to deliver invocations or stops the invocation practice altogether). What the Christians think the atheist wants to do is silence Christians…and the consequences of acting on such a belief could be messy.

            reply to this | link to this | view in chronology ]

  • icon
    Boojum (profile), 26 Aug 2019 @ 9:56am

    First amendment does support anonymous criticism.

    I'm sorry, but the courts have often ruled that anonymous speech is protected, particularly in regards to the government and politicians. There is a case in the courts right now where an LDS member criticized the LDS church anonymously on Redit and the courts are taking steps to prevent him from being unmasked in the copyright case the LDS brought against him. The courts have said that the first amendment is not there just to protect the speaker, but to also protect the public's ability to hear what a speaker has said. That it not only applies to U.S. Citizens but to people in other countries, allowing U.S. citizens to hear what they have to say. They have already ruled that the chilling affects of unmasking an anonymous speaker prevents others from speaking, and thus falls under the first amendment.

    reply to this | link to this | view in chronology ]

    • icon
      Stephen T. Stone (profile), 26 Aug 2019 @ 10:15am

      If we were talking about wholly anonymous communications here, you might have a point. But the communications talked about here seem less than anonymous, given they are connected to phone numbers and email addresses (however pseudonymous or “anonymized” they may be). That said, I can see cases where keeping such information private would benefit the “sending” party in some way (e.g., atheists and church/state issues).

      reply to this | link to this | view in chronology ]

      • icon
        Boojum (profile), 26 Aug 2019 @ 10:28am

        Re:

        And Redit may know the real identity of the person who posted criticism. But it was NOT publicly available. The information being sought here is not in the public record, if it was, no information request would be needed. At this point it has not been made public. If a person says something in a forum where they expect their personal information will be kept private, then the government is correct in protecting their identity. Just because the person you give your complaint to knows who you are doesn't mean everyone gets to know who you are.

        reply to this | link to this | view in chronology ]

        • icon
          Cdaragorn (profile), 26 Aug 2019 @ 12:05pm

          Re: Re:

          The fact that the information is part of a public record doesn't mean you can get it without an information request. That's not how public records work.
          You gave that information to your government official. If you expected it to remain private you were mistaken and no the government is not obligated to follow your false expectation. They never told you it would be kept private so you had no business expecting it to be.
          Comparing a private forum that intentionally hides your personal details with the public government that does not is clearly comparing apples and oranges.

          reply to this | link to this | view in chronology ]

          • icon
            Boojum (profile), 26 Aug 2019 @ 12:57pm

            Re: Re: Re:

            According to the FOIA itself you are wrong, Cdaragorn. It explicitly says that information given to the government can still be private. The private information you give to the government still belongs to you, not to the government. The 6th exception to the FOIA goes into this... unless you can find a counter example? If you can, I would be happy to listen. I don't mind being wrong, but when someone says something directly counter to current court cases I prefer to hear references so I can look it up myself.

            reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 26 Aug 2019 @ 10:25am

      Re: First amendment does support anonymous criticism.

      The anonymous part of the LDS complaint is that the complainant did not reveal their name to those they are complaining about. In this case, the government already know who the complainant is, otherwise they could not reveal the name etc. This smells like the government trying to bury the complaint, rather that protect the complainant.

      reply to this | link to this | view in chronology ]

  • icon
    Matthew Cline (profile), 26 Aug 2019 @ 10:22am

    Couldn't they just redact the names/addresses/etc?

    To the extent that Ron Cummins needs these complaints for his lawsuit, does he need to know who made the complaints? I don't see why he'd need that info, unless his lawsuit is alleging astroturfing.

    reply to this | link to this | view in chronology ]

    • identicon
      Sharur, 27 Aug 2019 @ 9:25am

      Re: Couldn't they just redact the names/addresses/etc?

      Matthew Cline,

      I think that information is exactly what he needs for his lawsuit. Specifically, he needs to know who to serve (the address/other personal information makes service easier/helps distinguish between people with the same name).

      In theory, he could sue "J Does", but I think that's what he did, to get authorization for the subpoenas that are the point of the lawsuit.

      reply to this | link to this | view in chronology ]

  • icon
    Boojum (profile), 26 Aug 2019 @ 10:40am

    From the FOIA Guide

    It also is important to remember that while the government may voluntarily or involuntarily waive its right to an exemption when its own interests are at stake, it cannot waive an individual's privacy interests under the FOIA by unilaterally publicizing information about that person. (100) The privacy interest inherent in Exemption 6 "belongs to the individual, not the agency holding the information," and "the fact that otherwise private information at one time or in some way may have been placed in the public domain does not mean that a person irretrievably loses his or her privacy interest in the information." (101)
    https://www.justice.gov/oip/foia-guide-2004-edition-exemption-6

    reply to this | link to this | view in chronology ]

  • icon
    Boojum (profile), 26 Aug 2019 @ 10:50am

    No case law?

    Interesting. The news article says that sources said there was no case law supporting the idea that peoples names were exempted from FOIA, but evidently in 1982 the supreme court addressed what personal information was meant by the FOIA and expended it beyond the narrow meaning that had been being used. This is from the same FOIA Guide that I posted from before. Does anyone else have a secondary source?":
    In 1982, the Supreme Court acted decisively to resolve this controversy once and for all. In United States Department of State v. Washington Post Co., (6) it firmly held, based upon a review of the legislative history of the FOIA, that Congress intended the term to be interpreted broadly, rather than narrowly. (7) The Court stated that the protection of an individual's privacy "surely was not intended to turn upon the label of the file which contains the damaging information." (8) Rather, the Court made clear that all information that "applies to a particular individual" meets the threshold requirement for Exemption 6 protection. (9) This means, of course, that this threshold is met if the information applies to any particular, identifiable individual -- which makes it readily satisfied in all but the most unusual cases of questionable identifiability. (10)

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 26 Aug 2019 @ 1:06pm

      Re: No case law?

      Does anyone else have a secondary source?

      Why would you want another secondary source when the primary source is readily available?

      Though I do question the relevance. The case you mention interpreted Exemption 6 in the Federal FOIA, neither the State of Missouri FOIA nor the first amendment were implicated at any point in the decision. So no, there is still no case law implicating the first amendment in any redaction of such documents.

      reply to this | link to this | view in chronology ]

      • icon
        Boojum (profile), 26 Aug 2019 @ 1:52pm

        Re: Re: No case law?

        Since both FOIA and the 1st amendment are federal in nature, I don't think a search for case law should be restricted to Missouri. I'm pretty sure that an court case trying to get the information that has been redacted will look at cases in other states before forming an opinion. I suspect that you are not finding any case law because the FOIA specifically excludes private information collected by the government. For example, many times you give your social security number to the federal government as part of a public record (a record collected by a public official) but they are still supposed to redact it when an FOIA comes in. The same is true of bank account numbers and so forth. The question then becomes is a persons name part private information? I would have to say that it would depend on the circumstances surrounding the public official collecting the information. I don't think it is as clear cut as this article seems to say. I also suspect there IS case law in the United States covering FOIA requests and the redaction of private information... but honestly, there are thousands lawsuits over FOIA requests... far to many for me to really go explore today.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 26 Aug 2019 @ 2:52pm

          Re: Re: Re: No case law?

          Since both FOIA and the 1st amendment are federal in nature, I don't think a search for case law should be restricted to Missouri.

          This case is wholly unrelated to the Freedom of Information Act, 5 U.S.C. § 552. It is a case concerning Missouri Revised Statutes, Chapter 610, commonly known as the "Missouri Sunshine Law," which is entirely unrelated to any similar Federal Laws (or any similar State Laws in states that are not named Missouri). The State of Missouri is not bound by any part of the Freedom of Information Act, 5 U.S.C. § 552.

          The exemptions for records disclosures by the State of Missouri are laid out in MRS 610.021 and 610.035. The Missouri state legislature has explicitly guided that the exemptions contained therein should be interpreted narrowly. No exemption considers the name, email, or phone number of individuals (identifiable or not) as exempt from release per se.

          This has a good list of cases concerning Exemption 6 of the federal FOIA (note, again, that the FOIA is completely irrelevant). Observe how (as far as I can tell) none of the decisions ever even mentioned the first amendment... almost like there's no case law about the first amendment in this context....

          Now, if you believe that your explanation is how things should work... good for you. But your opinion doesn't magically conjure case law out of thin air.

          reply to this | link to this | view in chronology ]

          • icon
            Boojum (profile), 26 Aug 2019 @ 3:42pm

            Re: Re: Re: Re: No case law?

            I agree that it doesn't, and thank you for pointing me towards the Missouri Revised Statues. There IS case law regarding the First Amendment protecting the privacy of speakers from court orders that I suspect would be relevant but not identical, particularly since federal law and constitution have primacy over state law and constitution (in the minds of the federal courts.) So I went to the Revised Statues like you said. Under the definitions records can be both a Public Record (Collected by a government body, contracted, etc) and a Closed Record (A record closed to the public). Basically, it would be collected, but closed (A reason it might be closed is in the exceptions part of the statutes: "(1) Legal actions, causes of action or litigation involving a public governmental body" or possibly " (16) Records relating to municipal hotlines established for the reporting of abuse and wrongdoing;"). There is little information in the article on the exceptions to the Sunshine Law.

            reply to this | link to this | view in chronology ]

            • icon
              Boojum (profile), 26 Aug 2019 @ 4:02pm

              Yes, still not first amendment

              By the way, before being taken for task for this, yes.. my post above still doesn't link the First Amendment directly to the Sunshine Law... unless during deliberations it was brought up in hammering out exceptions to the Sunshine Law. I'm not sure why the Attorney General would use that phrase rather than saying something like "These complaints were collected via an authorize complaint line" or "Are part of ongoing litigation" and are exempted from the Sunshine Law. That is baffling.. however the Statues involved separate Public Records into "Open Records" and "Closed Records". A closed record is one that falls under the exceptions section. The article doesn't say if these Public Records are Open or Closed, which I find dissapointing.

              reply to this | link to this | view in chronology ]

  • icon
    ECA (profile), 26 Aug 2019 @ 11:50am

    Freedom of speech?

    Its a very weird thing..
    Many countries say you have this.
    But in doing such, you tend to end up disappearing.
    Freedom of speech is great, but you also Tag/Label/target yourself.
    In a domesticated World, Then others would have the right and ability to stand up and Say anything THEY wished about what you said.
    (sounds like an open forum) Good, Bad, Stupid, ridiculous, Bitch, moan, groan, Complain, demand, Try to Take over a topic, try to say OTHER STUFF that has no barring, Get up and Complain about your neighbors dog..

    The Big part of this...was that it was IN PUBLIC. Generally their USED to be Parks setup for this. Places you could Stand up and debate your subject.
    Now days we want Short Simple answers, to stupid incidences.

    And if Speech was really free.. Why have we placed a few people in jails(some without processing) because they opened up a can of worms the Gov. Thinks was/is/could have been/might be Important.

    reply to this | link to this | view in chronology ]

  • identicon
    DocGerbil100, 26 Aug 2019 @ 4:21pm

    Hello, Mr Cushing. :)

    Interesting article, even if - as with others - I disagree a little with your take on it. I absolutely love the comments on it, though. From here onward, any time I see yet another as-yet-unflagged troll comment claiming TD is nothing more than an echo chamber, I shall think of this article - with TD's own regular commenters cogently arguing against the TD interpretation, in large part, submitting evidentiary quotes and links to support their views.

    Critics may carp as they like, but this seems like proof that there really isn't any kind of "Cult of Masnick" - that's the alt-right projecting their own piss-poor standards of belief and fellowship onto others. TD's commenters are here through shared and often passionate interests in tech, media and free speech - but we're not uniform in our thinking and we're nobody's blind zealots. We're better than that.

    Today's evidently been a good day for an argument. Shame I missed it. Still, at least I have coffee, whiskey and biscuits to end the day with. Cheers, one and all. :)

    reply to this | link to this | view in chronology ]

  • icon
    Boba Fat (profile), 26 Aug 2019 @ 8:44pm

    Well, of course.

    Missouri is the "Show Me" state, not "Show You". You don't get to see anything.

    reply to this | link to this | view in chronology ]


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