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Magic Words?

The News-Leader's Chad Livengood has written a series of articles about the Department of Natural Resources' decision to delay the release of information about elevated E.coli readings taken in late May. Today's story features a number of critics who suggest that citizens may have to invoke "'magic' words" to obtain information under the state's Sunshine Law, and that the Attorney General's office took an unnecessarily narrow reading of the law in its investigation into alleged violations of the Sunshine Law by the DNR .

However, when considering the full AGO report, today's article seems to be missing some key information.

The AGO report, released on August 12, was completed by Assistant Attorney General Ted Bruce in response to a complaint filed by Ken Midkiff on July 17 and was concerned only with whether a Sunshine Law violation had occurred.  Midkiff's complaint (see page 122) specifically referenced communications between the DNR and (1) the Lake of the Ozarks Water Alliance and (2) the Lake Sun Leader

However, as the AGO report makes clear, neither the ED of LOWA nor the newspaper's editor believed she had made a Sunshine Law request to the DNR. From Page 11:

Ms. Donna Swall, executive director of the Lake of the Ozarks Watershed Alliance, provided very specific information and appeared forthcoming about the circumstances giving rise to Mr. Midkiff's Sunshine Law complaint.

Ms. Swall stated to me that she did not make a Sunshine Law request and did not believe anyone should have interpreted her overtures to DNR as a Sunshine request.

Joyce Miller, editor of the Sun Lake Leader, made very similar comments to the Assistant Attorney General. From Page 18:

After a number of telephone calls and e-mails, Ms. Miller responded with an e-mail to me on July 30, 2009.  Her response was very straightforward and consistent with the information I had gathered up to that point.  She stated that neither she nor any member of her staff had made an official Sunshine Law request.  She verified that she and her staff had made numerous contacts with DNR staff seeking results.

And Ass't AG Bruce wrote the following in his summary (page 20):

Both Ms. Swall and Ms. Miller were unequivocal in stating that they did not make a Sunshine Law request, and my investigation has found no individual or member of the media made a Sunshine Law request for this information.

That neither Swall and Miller believed they had submitted Sunshine Law requests is not mentioned in the News-Leader story

Open government advocates may argue that any phone call or casual request should be memorialized and addressed by agency employees under the provisions of the Sunshine Law. But the critics in today's article are arguing that the DNR should have treated communications made by Swall and Lake Sun Leader as Sunshine requests, even though they didn't believe they were making Sunshine requests. 

This isn't a defense in any way of the DNR's decision to hold the E.coli report; there is clearly a difference between (1) good governing practices and (2) not violating the Sunshine Law. Indeed, the Governor, Attorney General -- just about everyone -- agrees that the release of the information should not have been delayed.  But in a story about an investigation that looked only at whether the DNR ran afoul of the Sunshine Law, it seems reasonable to expect that key information from that investigation be included, especially when it concerns the first-hand accounts of individuals at the center of the controversy.



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