Boone County Circuit Judge Brouck Jacobs, center, listens to opening statements September 28, 2021, as Solicitor General John Sauer argues for an order blocking mask rules in public schools (Pool photo by Don Shrubshell, Columbia Daily Tribune).
A Boone County Circuit Court judge on Monday sided with the Missouri School Boards’ Association and dismissed a lawsuit that argued the organization was subject to the state’s open records laws.
Southeastern Legal Foundation, a Georgia-based legal nonprofit that filed the lawsuit, argued the Missouri School Boards’ Association (MSBA) violated the Sunshine Law by not fulfilling a March records request for documents and communications related to school board meetings, including from its former parent organization.
The lawsuit alleged MSBA, which supports school boards through training and also advocates on their behalf before the legislature, was a quasi-governmental body subject to the law.
However, MSBA noted it was a private nonprofit that was not created by an act of a governmental entity, a point Judge J. Hasbrouck Jacobs agreed with after a roughly 35-minute hearing on Monday.
“I’m reading this statute as plainly as I can, and I think the definition of public governmental body means that it has to be created by either a legislative, administrative or governmental entity,” Jacobs said. “…So I’m going to grant the motion to dismiss.”
Jacobs gave Southeastern Legal Foundation 10 days to amend their pleading before he enters a final judgment. Braden Boucek, director of litigation for Southeastern Legal Foundation, told Jacobs he does not anticipate they will invoke the option.
“We do not think we can plead that they were created by any sort of governmental act,” Boucek said.
Chuck Hatfield, an attorney who represented MSBA, said Southeastern Legal Foundation’s stance could have opened the door for the argument to be made that numerous other organizations, like the Missouri Sheriffs’ Association or Missouri Municipal League, should also be subject to the state’s open records laws.
“There are a whole lot of associations out there that I don’t think the legislature meant to cover and that are not currently observing the Sunshine Law,” Hatfield said. “And there are good reasons for that.”
The Southeastern Legal Foundation’s lawsuit was filed in April, a little over a month after Missouri Attorney General Eric Schmitt’s office had filed a similar lawsuit of its own against MSBA. Schmitt’s lawsuit also argues MSBA is subject to the Sunshine Law, and some of the language in both lawsuits is nearly identical.
MSBA has also moved for that case to be dismissed, which has not yet been heard by Boone County Circuit Court Judge Kevin Crane.
“I expect that he’ll defer to what Judge Jacobs has done here and that he’ll enter the same order in that case,” Hatfield said after Monday’s hearing.
A spokesman for the attorney general’s office declined to comment Monday afternoon.
As part of its effort to determine whether Southeastern Legal Foundation was properly registered to conduct business in Missouri, MSBA had previously requested through the discovery process documents from the foundation regarding its charitable registration, to identify whether the foundation had solicited donations from Missouri donors and all of its communications with the attorney general’s office.
The foundation objected to all of MSBA’s requests.
Emails previously obtained by The Independent through an open records request showed that the Southeastern Legal Foundation and Schmitt’s office had communicated for months prior to the lawsuits being filed.
The attorney general’s office initially reached out to 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 investigative demand to an education consultant demanding more information about student surveys being used.
Southeastern Legal Foundation previously said Schmitt’s office did not advise the foundation on its records request or lawsuit against MSBA and that a March call with Schmitt’s office was to confirm whether a 1988 opinion from the attorney general’s office still reflected his office’s legal conclusion that MSBA is subject to the Sunshine Law.
On Monday, Boucek argued that MSBA’s role training school board members, receiving funding from tax dollars and being specifically named in state laws, demands transparency.
“MSBA is exactly who the legislature intended when it envisioned making a quasi-public definition applicable to private creatures,” Boucek said.
Running through the designations of a “public governmental body” outlined in state law, Hatfield noted the examples listed were created by a governmental action, like an executive order or statute, and that therefore the term “quasi-public governmental body” should be read the same way.
“There’s no allegation they were government officials, no allegation it was an order, no allegation it was a statute,” Hatfield said. “Without that allegation, we don’t believe it states a claim.”
But Boucek argued quasi-public bodies don’t need to have been created by governmental action before they are subject to Missouri’s open records laws.
Preventing the Sunshine Law from extending to private entities that weren’t created by a governmental act could lead to the government “circumventing their duty to public transparency,” Boucek said, citing instances when governments may hire private companies to operate prisons or transportation services.
“And in all of these cases, these are cases where we would expect a commensurate duty of transparency when those governments hire outside, private entities to assume governmental functions,” Boucek said.
Jacobs said he understands he “won’t be having the last word on this,” and in a statement after Monday’s hearing, Boucek said the foundation is considering whether it will appeal.
“Since 1988, when the Missouri Attorney General determined that MSBA is subject to the Sunshine Law, it is widely accepted that bodies like MSBA that perform public functions owe the public full transparency,” Boucek said in a statement.
Hatfield said he hopes Southeastern Legal Foundation will ultimately choose not to.
“I kind of hope this puts an end to it,” Hatfield said, “and that they’ll realize that this really isn’t a good use of anyone’s resources.”
This story has been updated since it was first published to include additional comments.
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