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UM sued over response to open records request, GOP attorney general contest at issue

The columns at the University of Missouri-Columbia.
St. Louis Public Radio file photo
More than 100 degree program will be eliminated at Missouri colleges and universities as part of a cost-savings review ordered by Gov. Jay Nixon. (flickr/Adam Proctor)

A former Missouri state representative is suing the University of Missouri and Joshua Hawley, a Republican candidate for attorney general, over delays by the university in responding to a wide-ranging request for emails and other documents.

The lawsuit brought by Kevin Elmer, who represented Nixa in the state House of Representatives for two terms, says he has been seeking the documents for nearly a year. He wants more information about a leave of absence granted by the university to Hawley, who was an associate professor in the law school in Columbia, and Hawley’s activities before he went on leave, to determine whether university-owned equipment was improperly used for political purposes.

Editor's note: Two items presented in this story as fact are really allegations in the lawsuit that are disputed by Hawley. He says he was never paid when he was on leave, since his contract runs from September through May, and he never sought a paid leave that was granted, then rescinded.

The suit, filed Wednesday in Boone County Circuit Court, says Elmer has paid the university system nearly $5,000 for the emails and other documents but “has been met with obstructive and delaying tactics, couched in a litany of intermittent non-responsive responses” from Paula Barrett, the university’s custodian of records. She is a defendant in the suit along with Hawley, the university and Gary Myers, dean of the law school.

“Only after threatening suit six months into the request did the bulk of the responsive documents start to be produced,” the lawsuit adds. “However these documents are being produced at an unreasonably stilted pace and subject to vague and amorphous assertions of privilege.”

The suit alleges that Barrett, Hawley and Myers worked together to decide what records would be considered for review, then possibly released to Elmer. The suit said such a delegation of duties violates the state’s Sunshine Law.

“This delegation is all the more egregious,” the suit adds, “in that the custodian and the university are allowing the subject of an open records request unchecked power to determine which documents should even be considered for production. The opportunity for, and evidence supporting, impropriety in this instance is staggering.”

On the amount of time that has elapsed between Elmer’s original request and the date the lawsuit was filed, it adds:

“There is absolutely no reasonable belief that it would take almost a year to produce two years of e-mails and documents from one computer.”

Myers announced Friday that he was leaving his post as dean to join the law school faculty in mid-August. He said the move had been under discussion for a few months, and a spokesman for Mizzou said the lawsuit involving Hawley played no role in Myers' decision.

In response to the suit, the university said it was working as quickly as it can to research the request at a time that it is receiving a record number of such requests.

“The University is responding with transparency and in a timely and lawful manner. For the Elmer request alone, the UM System is reviewing over 10,000 emails and more than 70,000 pages of documents, for a request that was but one in a year when the University received a record number of 714 Sunshine requests. The University is on pace to set another record for requests in 2016, and will continue to follow the law and respond as quickly as possible to all records requests.”

University spokesman John Fougere said that, so far, all but one of 28 separate requests from Elmer have been fulfilled by the small staff dedicated to such work, and that the one remaining is “massive.”

He added that responding to the requests is not a simple matter.

“We can’t just get the emails and send them off,” Fougere said. “We have to go through every single page to make sure we comply with the law.”

Compared with the 714 open records requests the university received last year, Fougere said it got 476 such requests the year before.

Allegation of dirty tricks

Hawley is running to be the Republican nominee for attorney general againststate Sen. Kurt Schaefer, R-Columbia. He has been granted a year-long leave of absence from the university – leave that was originally paid, then was changed to unpaid. It began on Sept. 1 of last year, which the lawsuit says is more than a month after he declared his candidacy. (Editor's note: Hawley says he was never paid when he was on leave, since his contract runs from September through May, and he never sought a paid leave that was granted, then rescinded. These are allegations in the suit and have not been proven.)

Josh Hawley takes part in a debate.
Credit Carolina Hidalgo | St. Louis Public Radio | file photo
Attorney Josh Hawley, who is running for state attorney general, debates Senator Kurt Schaefer during the Pachyderm Attorney General Forum at Lincoln Days.

In response to the lawsuit, Hawley campaign spokesman Scott Paradise released a statement on Thursday calling the action “frivolous” and an effort to “distract voters from Sen. Schaefer’s serious legal and ethical problems.”

“Senator Schaefer’s dirty tricks are one more reminder why Missouri voters are disgusted with Jefferson City politicians,” the statement added. “After abusing the power of his office to promote his own political career, Senator Schaefer is now trying to abuse the court system. He should be ashamed.”

Schaefer has been vocal in his criticism of the University of Missouri in recent sessions of the legislature. His campaign did not respond to a request for comment.

But Jane Dueker, the attorney for Elmer, said in an interview Friday that while Elmer supports Schaefer’s candidacy for attorney general, Schaefer is not connected with the lawsuit.

“They can call it dirty tricks,” she said, “but just produce the emails. Just produce them. What are you afraid of? How is this dirty tricks? Just turn over the documents. We’re not asking for student information. We’re not asking for anything that is legitimately exempted from disclosure by the Sunshine Law. But his political activity on his state computer is certainly public record.”

Because Hawley did not teach in the summer and fall of 2015, but was paid until Sept. 1, the lawsuit says that his salary was “a public subsidy of a political campaign [that] would presumably violate University policy, constitute an undisclosed campaign contribution in violation of Missouri ethics provisions, violate the Missouri Constitution, and contravene federal IRS regulations pertaining to non-profit organizations.” The Hawley campaign said he was not paid over the summer.

State Sen. Kurt Schaefer, who is running for state attorney general, speaks during the Pachyderm Attorney General Forum on Saturday afternoon at Lincoln Days.
Credit Carolina Hidalgo | St. Louis Public Radio
Kurt Schaefer takes his turn at Lincoln Days.

The suit says Elmer filed his Sunshine Law requests “to determine whether University leave policy was violated, to investigate whether University property was improperly used for campaign purposes, and to determine the level of support, financial or otherwise, that Hawley received for his campaign activities by the University of Missouri Law School.”

Dueker said that when a video of Melissa Click’s activities during student protests at Mizzou last fall went viral, the university was able to produce 1,100 pages of her emails in less than 24 hours. “This is not a difficult task,” she said. “It’s electronic documents.”

The best way to settle the dispute over Hawley’s emails and other material, Dueker added, would be “to just turn the stuff over. Just turn it over.

“The university has had that request for 11 months. He paid $5,000 to get the documents in July. Everything else was produced by the end of the summer. So it’s really mind boggling how the university could not have gotten through one person’s email in 11 months.”

Material included in the filing quotes Hawley as arguing that some of the information sought by Elmer is not covered by the Sunshine Law for university employees who are not administrators.

The suit seeks to find the defendants guilty of violating the Sunshine Law and engaging in a civil conspiracy, to recover costs paid by Elmer plus other damages and to impose civil penalties. It asks that the case be heard by a jury.

The University of Missouri’s Board of Curators holds the license for St. Louis Public Radio.

Follow Dale on Twitter: @dalesinger

Dale Singer began his career in professional journalism in 1969 by talking his way into a summer vacation replacement job at the now-defunct United Press International bureau in St. Louis; he later joined UPI full-time in 1972. Eight years later, he moved to the Post-Dispatch, where for the next 28-plus years he was a business reporter and editor, a Metro reporter specializing in education, assistant editor of the Editorial Page for 10 years and finally news editor of the newspaper's website. In September of 2008, he joined the staff of the Beacon, where he reported primarily on education. In addition to practicing journalism, Dale has been an adjunct professor at University College at Washington U. He and his wife live in west St. Louis County with their spoiled Bichon, Teddy. They have two adult daughters, who have followed them into the word business as a communications manager and a website editor, and three grandchildren. Dale reported for St. Louis Public Radio from 2013 to 2016.