If you destroy a farmer’s corn, lawmakers want you to pay.
If governmental bodies accidentally violate Missouri’s open meetings and records law, they don’t have to pay.
That contrast highlights a central frustration for advocates of a stronger Missouri Sunshine Law. Unlike most laws, where even a careless violation warrants a penalty, the Sunshine Law requires a judge to find someone “knowingly” or “purposely” broke the law to be penalized.
What open-government supporters want is a “negligence” standard, allowing fines against public officials who wrongly close meetings and deny records, while making little to no effort to learn the law.
Charles Davis, executive director of the National Freedom of Information Coalition, based at MU, calls Missouri’s “knowingly” clause a “ridiculously un-meetable standard.”
“What you’re doing is, you’re requiring someone to prove a conspiracy to violate the law,” Davis said. Supporters of a negligence standard came closest to success in 2004, when the House passed legislation that would have authorized fines of $25 to $250 for public officials proven to have negligently violated the Sunshine Law.
“People who have been accused of violating the Sunshine Law have been able to stand behind the excuse that they were ignorant of the law,” Rep. Jack Goodman, R-Mount Vernon, said at the time.
But Goodman, now a state senator, was forced to compromise with senators and Missouri Municipal League members who feared a negligence standard would discourage people from volunteering for government boards and low-paying commissions.
So in 2004, lawmakers instead passed a two-tiered system that remains in place today. Knowing violators of the Sunshine Law face civil fines of up to $1,000 and the potential to pay the plaintiff’s attorneys’ fees. Purposeful violators face civil fines up to $5,000 and must pay the plaintiff’s attorneys’ fees.
Efforts to change the standard have stalled.
Rep. Terry Young, D-Independence, filed legislation at the start of the 2006 session to enact a negligence standard for Sunshine Law violations. But it never received a hearing in the House Judiciary Committee.
She’s filed the same bill this year, and it again has been assigned to the Judiciary Committee, which has not scheduled a hearing.
Yet there is strong support to impose a negligence standard for crop damage.
Rep. Brian Munzlinger, a crop farmer who sponsored the House bill, said he’s trying to address cases where commercial herbicide sprayers accidentally hit the rong field, or accidentally douse a crop with the wrong chemical.
During House debate on the Sunshine Law in 2004, Munzlinger voted for an amendment to allow damages only for knowing violations, not negligent ones.
Munzlinger was asked Friday, given the language in his crop-damage bill, if he now also would support a negligence standard for Sunshine Law violations.
“I’d have to look into the Sunshine Law,” he said, “but on the surface at least, it seems to make pretty good sense.”