A central Missouri judge has tossed out a lawsuit against the Missouri School Boards’ Association (MSBA) alleging that the nonprofit is subject to the state’s open records laws.

A Georgia-based nonprofit, called the Southeastern Legal Foundation (SLF), filed the lawsuit claiming that MSBA is a quasi-governmental body. SLF said the school board group should provide it records about school board meetings and other discussions.

Missouri judge tosses out lawsuit against school board group about open records laws

Chuck Hatfield, an attorney representing the Missouri School Boards’ Association, said nonprofit associations created by private citizens should not be required to publicly release their work.

“Sometimes the government creates not-for-profit entities and if the government’s creating them, then they certainly should be subject to the Sunshine Law under certain circumstances – and that’s what the law currently says. But when you’ve got a not-for-profit that the government didn’t create, they’re independent, separate associations that may have government members, they’re not the government,” he said. “Missouri School Boards’ Association, for example, does lobbying work. They go to the legislature and they ask for policies that they think are appropriate. They shouldn’t have to disclose all of their discussions and all of their lobbying strategy to folks that may not agree with them. And just because they happen to have members who are government officials doesn’t change that.”

Boone County Judge J. Hasbrouck Jacobs agreed that MSBA is a private non-for-profit that was not created by the government.

Hatfield said Missouri Attorney General Eric Schmitt, a Republican running for U.S. Senate, filed a virtually identical lawsuit against MSBA. That lawsuit is still pending.

“There was a lot of public attention about something the National School Boards Association did. The National School Boards Association wrote a letter to United States Attorney General Merrick Garland about some of the protests that were going on at school board meetings during COVID. The Missouri School Boards’ Association didn’t know anything about it, didn’t have anything to do with it. But when that all blew up, the Missouri School Boards’ Association got a couple of requests for emails and records about that whole issue,” he said.

The nonprofit received one series of requests from Schmitt. Hatfield said Schmitt asked for those discussions, as well as communication about masking policies and critical race theory.

“The Missouri School Boards’ Association offered to produce all of those to their attorney general. They wanted him to pay for copies, which is something that if they weren’t covered by the Sunshine Law, he would certainly have to do, so they asked him to give some money to help pay for the copying. The attorney general declined to do that and those records were not produced right after that,” he said.

The price tag of Schmitt’s records requests? Hatfield said it was more than $10,000. Due to the volume of records Schmitt was seeking, that’s the estimate an external IT company gave MSBA.

According to Hatfield, about one month later, the Southeastern Legal Foundation sued MSBA.

“The Southeastern Legal Foundation asked for many of the same records,” said Hatfield. “Much of it is cut and pasted. It’s the same lawsuit. The Missouri School Boards’ Association told Southeastern Legal, ‘No, we’re simply not covered at all (under the Sunshine Law) and we’re not going to provide these documents.’ They didn’t want to set the precedent that some not-for-profit organization from another state could come in here and get access to these records. They were willing to provide those to the state attorney general and certainly they don’t have anything to hide. It’s been reported by some other news organizations that there were a lot of communications between the Missouri Attorney General and the Southeastern Legal Foundation.”

Hatfield said he requested information about how SLF is funded.

“We asked them to provide us information about whether they’re soliciting funds in Missouri, whether they’re receiving funds in Missouri, what exactly their interest is in being in our state at all. They refuse to provide any of that information,” said Hatfield. “We were actually going to talk to the judge about at the hearing this week, but instead of getting into that the judge dismissed their lawsuit.”

He points to Schmitt making a variety of records request about Springfield Schools.

“Missouri has this open records law that requires citizens to request information from their government. Seems like a good idea, right? Government ought to be open. People ought to be able to request information. At some point that law can be abused and I think it’s appropriate to question why are we getting all of these records requests? At some point you have to wonder, what is the point of continuing to file all these records requests and engage in this litigation? Is it really trying to get to some information that’s going to help promote open government and transparency, or is it simply to harass and intimidate people with whom the requester disagrees? And I think in some cases, it’s reasonable to question whether the attorney general has crossed the line,” said Hatfield.

The Southeastern Legal Foundation could appeal the decision.

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