An investigation into whether the Blunt Administration violated the state record retention and open records law ends with a whimper, not a bang, in Cole County Circuit Court.
Special investigators Mel Fisher and Richard Wilhoit have filed a 46-page report that contains eight findings as well as eight unresolved issues. The attorneys for former Governor Blunt have filed a 22-page response that rejects the conclusions of the investigation and claims the issue could have been resolved quickly if the scope of the investigation had been narrowed.
The crux of the case will never be resolved. The report filed by Fisher and Wilhoit admits that "The role of Governor Matt Blunt in the development and application of the Office of Governor’s policies and practices regarding the Sunshine Law and record retention is unknown, because Governor Blunt could not be deposed or interviewed during the course of the investigation."
Cole County Circuit Judge Richard Callahan quashed a motion by Special Assistant Attorneys General Louis Leonatti and Joe Maxwell to depose Blunt. Fisher then sent a letter to Blunt, asking to meet with the governor "to discuss our findings". Blunt did not respond.
The investigation began after then-Attorney General Jay Nixon received complaints that the governor’s office had violated the state Sunshine Law in how it handle e-mail correspondence. Nixon appointed Fisher and Wilhoit to investigate. Lawyers for Governor Blunt, objected and, eventually Judge Callahan ruled that neither Fisher nor Wilhoit had authorization for the investigation, because the Attorney General’s office had not extended the proper authorization to a special assistant attorney general. Callahan himself appointed Leonatti, a Republican, and Maxwell, a Democrat and former Lt. Governor, as special assistant attorneys general. Current Attorney General Chris Koster authorized the team to continue its investigation when it lapsed over from one administration to the next.
The investigation concludes that it is unable to determine the extent of Governor Blunt’s involvement in how his office decided to handle electronic communication, because he refused requests for interviews.
"What has also not been determined is why Governor Blunt left office with no public accounting, or explanation to the public, of his administration’s failure to comply with these two laws (The records retention and the open records laws)," the report states.
The report did find that the Office of Governor had insufficient policies "to ensure proper compliance with the Sunshine Law and the record retention statutes." The inadequacy of the policies and practices limited its ability to comply with Sunshine Law requests made by various media outlets for e-mail correspondence.
An effort to discover whether the governor’s office purposely sought to destroy back-up tapes of e-mails failed to reach a conclusion. The report states, "Insufficient evidence was present to either prove or disprove the allegation that there was any endeavor by any individual or group of individuals to overwrite data contained on backup tapes in the possession of the Office of Administration."
Unresolved issues, according to the report, remain. The primary concern of the report is whether the Attorney General has authority to conduct a thorough investigation into whether a governor’s office has violated the records retention and open records laws.
A response filed by Governor Blunt’s attorneys rejects much of the report. It states, "The findings and conclusions the report reaches, other than those specifically noted above, are rooted in no small part on legal assumptions and conclusions that are at odds with the text of the statutes on which they rely and unsupported by any caselaw. The report also contains flawed factual assumptions and conclusions."
Blunt’s legal team contend the governor’s office fully complied with state law and rejects the report’s conclusion that its policies were insufficient to comply with state law. The response notes that the court cleared Governor Blunt of any personal liability in the case. It also states that the claims against the governor’s staff were unsubstantiated, "More importantly, there was never any evidence that anyone, much less Gov. Blunt, committed any purposeful violation of the Sunshine law."
The response concludes that case could have been settled quickly if the scope of the requests for e-mails had been narrowed. It claims taxpayer money was wasted in the litigation.
With the investigation and response submitted to the court, Special Assistant Attorney General Louis Leonatti filed a request to the court to dismiss the case.