Guarding secrecy

The St. Louis Post-Dispatch ran an article this week about the refusal of the Missouri National Guard to  divulge information about Guard members who were involved in looting after last year’s Joplin tornado. The Guard, in effect, told the newspaper to buzz off. 

Yes, said a the commander of the 35th Engineer Brigade, some of his people had done some looting. An investigation had been done and discipline had been dispensed. 

How many soldiers were involved?  Buzz off.

How extensive was the looting?  Buzz off.

How were the soldiers disciplined?  Buzz off. 

We don’t have to tell the public that we are regularly begging for support from anything we don’t want to say.  It’s in the law.  

Those of us who report the news know what happened to a Joplin cop turned looter.  We know what happened to three Baxter Springs, Kansas firefighters who went shopping among the debris.   But Missouri National Guard members?  Buzz off.  

The Post-Dispatch article by Phillip O’Connor on Wednesday traced a series of efforts by a state senator, the Associated Press, and the newspaper to get information about neo-Nazis who are or have been in the Guard, about how National Guard aircraft  have been used by government officials and employees to fly to high-visibility events, and about Joplin looting. 

Buzz off, said the Missouri National Guard–although it finally did fork over flight information to the AP four months after it was requested and only after the AP had filed a federal freedom of information request. 

The article pointed out that the active duty military makes available court martial records and other information about misconduct by service personnel.  But not the Missouri National Guard which–believe it or not–was exempted from the state’s open meetings/open records law in 1987, a move the bill’s sponsor now regrets allowing.

An organization called Sunshine Review that keeps track of open records and open meetings laws in the states says Missouri is the only state that exempts the National Guard from the state open records law.  

But does it, really?   Most of Missouri’s Sunshine Law is permissive.  Unfortunately, most of our government bodies seem to think the word “may” means “must.”  They’re wrong but they don’t seem to spend much time pondering the difference.  The word “may” is lubricant for the hinges on the doors they close to the public. 

The troublesome section of the law is in Chapter 610.021 of the state statutes, paragraph 4.  The section lists exceptions to requirements for open meetings and open records.  The section says, “Except to the extent disclosure is otherwise required by law, a public governmental body is authorized to close meetings, records and votes, to the extent they relate to…(4) The state militia or National Guard or any part thereof.”  

Read those words carefully.  The National Guard is AUTHORIZED to keep secrets.  But the law does not MANDATE it to keep secrets.  If may keep secrets if it wishes to do so.  Clearly the National Guard wishes to keep secrets. 

The very next section of the law, 610.022, contains two sections that are important to the discussion. 

Section 4 says nothing in 610.021 “shall be construed as to require a public governmental body to hold a close meeting, record or vote to discuss or act upon any matter.”  And Section 5 says “Public records shall be presumed to be open unless otherwise exempt pursuant to the provisions of this chapter.”   

A layman’s reading of .021 and .022 could lead one to think that the National Guard, whose members often sport medals proclaiming their marksmanship, prefers not to shoot straight with the public. 

An editorial in Friday’s Post-Dispatch calls for changes to the Sunshine Law’s exemption for the Missouri National Guard. 

A sad situation too often happens, however, when legislators introduce bills making the Sunshine Law more comprehensive in the openness the law is intended to promote.  Various entities and agencies try to move the bill the other way.  They demand to be exempt from a law that makes their actions and records more available to the public they claim to serve.  Too often, the legislation trying to make our government more open is shelved because self-serving interests try to turn it into something that makes our government more closed. 

That says something that we as journalists–and that we hope the general public–find alarming.  Government innately wants to keep secrets. 

In the mid-1970s, Senator Bill Cason of Clinton sponsored the bill that became Missouri’s first Sunshine Law.  Passage of it was a major accomplishment, although it was aided by public rejection of the Richard Nixon administration’s Watergate issues.  It has been expanded since then. 

But through all those years, one thing has remained constant for most of its provisions—government agencies are not required to hold closed meetings or to close reocrds.  They are permitted to do so.  Unfortunately some agencies—the Missouri National Guard being one–give themselves permission to hide their actions from the public.

The Guard likes us to do stories about the members who did great things in Joplin and who did great things last year on flood duty and who risk their lives in overseas deployments.  But you know something?  There’s nothing that mandates the Missourinet make that information public. We have that discretion.  

To paraphrase the law the National Guard hides behind, “The Missourinet is authorized to ignore meetings, records and votes, to the extent they relate to…(4) The state militia or National Guard or any part thereof.”

We probably won’t because professional standards require us to make information available to the public.  But the issue does sound like a good thing for us to discuss in our newsroom the next time the Guard wants to use us to get out some favorable information.      


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