The state Attorney General’s Office is taking the Missouri School Boards’ Association to court, accusing the nonprofit of withholding open records.

The Office says MSBA is a quasi-public governmental body because it performs a public function and the nonprofit’s funding comes almost entirely from public funds. Therefore it says the school board group is subject to the state’s open records law, known as the Sunshine Law.

Attorney General Eric Schmitt (Photo by Alisa Nelson, Missourinet)

MSBA is a nonprofit organization – and whether it is required to comply with the Sunshine Law will be determined in court.

Attorney General Eric Schmitt, who is running in a crowded Republican primary for U.S. Senate, wants records about the National School Board Association, as well as guidance on race-based history, masks mandates and meeting policies regarding students with disabilities.

Chuck Hatfield, a Jefferson City attorney representing MSBA, says in the history of the Attorney General office, no Attorney General has ever sued a not-for-profit for violating the Sunshine Law.

“A review of the lawsuit shows it is not the result of any complaint or important governmental policy, but rather to advance a particular political agenda. Not-for-profit entities everywhere should be terrified. This lawsuit is simply inappropriate,” he says in a statement.

Missouri has thousands of not-for-profit organizations. One is the Missouri Society of Association Executives. Board President, Morgan Mundell, tells Missourinet the lawsuit is new legal ground that has been broached.

“Having a statewide elected official utilize the Sunshine Law to examine records, internal communications and documents with other entities – it’s something that’s definitely new to me and it’s something that probably brings a great deal of concern among members in the nonprofit world,” he says. “Can they truly effectively self-govern themselves with the threat of a Sunshine Law coming down on their head every day? I’m not saying that’s going to happen but that’s like the fear. I mean, you know as well as I do, how these things work – it starts with a little thing and next thing you know, it boils up and it gets bigger and bigger. Where does the ramification train stop once it gets going?”

He thinks Missouri’s entire nonprofit world is watching this lawsuit.

“Some associations have proprietary information inside their realm – how they operate, how they would do something, their due structure they may not want out there,” he says. “Some engage in political advocacy. Some are purely education. But to open up the Pandora’s box, so to speak, that you can use the Sunshine Law to go after a nonprofit, I think that’s probably one of the questions that’s going to come out of this lawsuit and be discussed in the association world. Who’s vulnerable if this lawsuit is won? Who now has to revise their approach on how to do operations knowing that you could be sunshined at any point?”

Mundell questions where the line is drawn and what makes a business a quasi-public governmental body.

“What point are you not a quasi-governmental entity and what point are you,” asks Mundell. “If you received grants from the federal government to do work on health care does that mean you’re a public entity and you’re now subject to the Sunshine Law by the state or by elected officials? Let’s say I’m an IT company and I sell computers to the Missouri State Government. If 70% of my revenues came come from state government, does that mean you can sunshine my private business records? Where do we draw the line? Where does this stop? You compare that back to the MSBA, they get dues from tax dollars. So therefore, they’re sunshineable. Well, the private sector business is making 70-80% of their business off the government, are they therefore instruments of the government and therefore sunshine?”

He says the lawsuit also raises a concern about free speech.

“Are we stifling free speech? Many associations will take a stance on a public policy issue, which is very much their right and guaranteed by the First Amendment. So are we now moving into an area where people necessarily don’t want to step up and voice their opinion, because they fear retribution of a lawsuit through the Missouri Sunshine Law,” Mundell asks.

To view the lawsuit, click here.

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