Settlement in Cole County Circuit Court to give media Missouri

Daily Record and the Kansas City Daily News-Press, Oct 16, 2008 by Donna Walter

Missouri Gov. Matt Blunt has agreed to turn over old e-mails at no cost to three news organizations that requested them.

The Associated Press, Kansas City Star and St. Louis Post- Dispatch intervened in a lawsuit filed by two court-appointed lawyers about the governor's e-mail retention policy.

The settlement agreement was signed Wednesday morning in Cole County Circuit Court.

Kansas City lawyer Jean Maneke, who practices media law at The Maneke Law Group, welcomed news of the settlement.

"It's a reaffirmation that the electronic communication of state officials is official business and is available under the Sunshine Law," she said.

According to a statement released from the governor's office, Blunt's reason for charging the news outlets for the e-mails was to save the state money.

"We tried to prevent the media from charging approximately $50,000 to taxpayers for the cost of retrieving tens of thousands of e-mails, but now that we are providing this information for free the media's request will end up costing the taxpayers every penny of the $50,000 and likely more," Blunt said in the statement.

The dollar amount represents the total charge to all three news outlets, according to Blunt.

The AP reported that Blunt's office originally said it would cost the wire service $23,000 for copies of the e-mails. Lewis, Rice & Fingersh lawyer Joseph Martineau said the Post-Dispatch had been told to pay more than $20,000. He said the Star's request was more limited than those of the AP and the Post-Dispatch. Lewis, Rice also represents Missouri Lawyers Media, which publishes this newspaper.

According to the agreement, the governor's office has 30 days to turn over Blunt's e-mails as well as those of Ed Martin, Blunt's former chief of staff; Henry Herschel, former general counsel; Richard Aubuchon, former deputy commissioner and chief counsel for the Office of Administration; Scott Eckersley, a former staff attorney; and Rich Chrismer, deputy chief of staff.

The governor's office must also submit within 30 days a list of those e-mails it says are exempt from the Sunshine Law, identifying the sender, receiver, date and time of the e-mail, general subject matter and the basis for the claimed exemption, Martineau said.

A special master will be appointed to resolve disputes about e- mails that Blunt's office claims are exempt from the Sunshine Law. The parties agreed Frank Conley, a retired Boone County Circuit Court judge, should be named special master.

The news organizations made Sunshine Law requests near the end of 2007 for e-mails received between Aug. 17, 2007, and Oct. 31, 2007.

Judge Richard Callahan, who is overseeing the case, appointed attorneys Louis Leonatti and Joe Maxwell, the former lieutenant governor, as special assistants in July after Attorney General Jay Nixon said he wouldn't enter into the case. Callahan concluded Nixon's refusal to enter the case must mean he believes he had a conflict of interest. Nixon is the Democratic candidate for governor.

The Cole County lawsuit stems from the September 2007 firing of Scott Eckersley, who was Blunt's deputy counsel. Eckersley said he was fired for questioning the office's e-mail retention practices, but Blunt's office said the lawyer was fired for performance- related issues, including doing legal work for his father on state time and for viewing an adult Web site from a state computer.

Eckersley sued Blunt's office for defamation. The case is pending in Jackson County Circuit Court.

Steven Garner, of Strong-Garner-Bauer, represents Eckersley in his defamation lawsuit. He said he doesn't expect much to come out of these e-mails.

"I would be surprised, given the people we're dealing with, that they're going to turn over any incriminating information," he said.

During the course of taking depositions, Garner learned that officials in Blunt's office had been taught how to erase e-mails so that they would not be recorded on the backup tapes, he said. That process entailed deleting e-mails from the inbox, from the deleted files folder and from the recover deleted items folder, he said.

"The depositions are showing they're not forthcoming," Garner said. "To me, it's all gamesmanship to try to fight back against the damaging testimony that's come out so far."

But Blunt's statement said the governor believes in "an open and transparent state government."

"This office has released more e-mails and documents than any other Missouri official, and we have never denied access to any e- mail that was not protected by law. As we have said when reasonable, tailored requests are made, we can do this at low or no cost," Blunt said in the statement.