Schmitt cites First Amendment to withhold records in lawsuit

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JEFFERSON CITY, Mo. (AP) – Missouri Attorney General Eric Schmitt is arguing in a lawsuit that the First Amendment allows him to withhold some public records concerning private citizens that were requested by the plaintiff’s attorney.

Schmitt made the argument in a lawsuit filed against Republican state Rep. Holly Rehder, of Scott City, who is accused of defamation by former Scott City Mayor Ron Cummins, The Kansas City Star reported.

Cummins resigned as Scott City mayor in August 2017 after Rehder called for an investigation into allegations that he abused his positions. He alleges in his lawsuit that Rehder and others made defamatory statements against him to the news media and continued to do so after law enforcement advised her that he had not broken any laws.

Cummins’ lawyer is seeking information about constituents who complained to Rehder’s office. Schmitt argues in a brief filed last week that turning over the information would violate those constituents’ right to free speech.

Schmitt’s contention is similar to one made by Gov. Mike Parson, who has invoked the First Amendment while withholding identifying information of private citizens who contact the governor’s office. Missouri Auditor Nicole Galloway in May asked Schmitt’s office to rule whether Parson illegally cited the First Amendment to withhold information from public records but Schmitt has not issued a ruling.

The governor’s office has argued that citizens would not contact elected officials if they believed information like email addresses and phone numbers could become public. Transparency advocates argue that withholding the information violates the state’s open records laws and could shield lobbyists and other special interests from public scrutiny.

Chris Nuelle, Schmitt’s spokesman, said the two issues are separate because one involves discovery in a lawsuit and the other pertains to information redacted under the Sunshine Law. He said Schmitt’s argument in the legal brief should not be considered “a preview of what may or may not come.”

But transparency advocates criticized Schmitt’s argument, which they said is the same as Parson’s.

Jean Maneke, attorney for the Missouri Press Association, noted that the attorney general’s office cited no case law to support his argument in the lawsuit because no such case law exists.

“There is no legal argument under the Sunshine Law that the First Amendment allows for the closure of records by a government official,” Maneke said.

And Daxton Stewart, a journalism professor specializing in media law at Texas Christian University, said it is “misguided” to claim the First Amendment allows the withholding of information that the Sunshine Law otherwise requires to be released.

“The First Amendment protects a citizen from being punished by the government for their speech, but it doesn’t protect said speech or information about the citizen from disclosure,” Stewart said. “There’s not a court opinion I’ve ever seen that could be cited for that point.”

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