At Issue in Missouri: Are Text Messages Subject to Open Records Laws?

A nonprofit group filed a complaint with the Missouri attorney general’s office claiming state Auditor Nicole Galloway isn’t complying with open records laws.

by Jason Hancock, The Kansas City Star / December 19, 2017

(TNS) — JEFFERSON CITY — A nonprofit with ties to numerous high-profile Republicans says it filed a complaint with the Missouri attorney general’s office alleging Democratic state Auditor Nicole Galloway isn’t complying with open records laws.

The allegations are the latest twist in a months-long back-and-forth between Galloway and Kansas City-based Missouri Alliance for Freedom.

The nonprofit sued Galloway earlier this year, alleging her office is violating the Sunshine Law by refusing to turn over requested documents. Galloway has sought to get the lawsuit thrown out, arguing it has no merit and is simply an attempt to intimidate a political rival.

Missouri Alliance for Freedom is now asking Attorney General Josh Hawley to investigate whether Galloway is failing to turn over text messages sent and received on her state-issued phone. The organization says it filed its complaint with Hawley’s office by mail on Thursday.

Hawley’s spokeswoman said Monday morning that the complaint has not been received.

“The documents requested of Auditor Galloway are public record and should be produced,” said Kristen Blanchard Ansley, president of Missouri Alliance for Freedom. “Galloway is withholding property that belongs to Missourians.”

Galloway’s office says it has worked to fully comply with the request, including turning over more than 24,000 pages of documents at no charge in response to records requests by Missouri Alliance for Freedom. And the office says it continues to work to fulfill the expansive records requests.

Critics of Missouri Alliance for Freedom are also questioning the timing of the complaint, arguing that it looks like an attempt to distract from recent revelations that Gov. Eric Greitens and his staff are using an app that erases text messages after they’ve been read.

The governor’s actions inspired calls for Hawley’s office to investigate whether the governor is illegally destroying public records by using the app. Hawley, a Republican, said last week he is weighing whether to appoint a special investigator.

In May, Missouri Alliance for Freedom requested Galloway turn over all communications, including texts and emails, since she took office in 2015. The group also requested all documents connected to her audit of the Missouri Department of Revenue and whether it was complying with a state law requiring that income tax refunds be paid out within 45 days of filing.

The audit gained public attention after Galloway threatened to issue a subpoena to force the Greitens administration to comply and turn over information on its management of income tax refunds.

Two months after filing the initial records request, Missouri Alliance for Freedom filed a lawsuit in Cole County Court saying the auditor’s office was not turning over the records.

In mid-November, Missouri Alliance for Freedom filed another records request, this time seeking a forensic image of Galloway’s state-issued cell phone and communications surrounding the retention and preservation of records related to the phone.

The group asked that Galloway “process this request first, ahead of any prior (Missouri Alliance for Freedom) request.”

Galloway seized on the new request, arguing that the “sudden disinterest in records previously requested strongly suggests this lawsuit is not about obtaining information.”

Her office noted that the new request was submitted just two weeks prior to the due date for the final and remaining requested records to be turned over.

The record requests all appear to be “a deliberate effort to intimidate the state auditor and obstruct a thorough review of state agencies, specifically the audit of the timeliness of tax refunds.”

The auditor’s office filed a request asking a judge to throw out Missouri Alliance for Freedom’s lawsuit.

Ben Hurst, an attorney with the Graves Garrett Law firm in Kansas City who is representing Missouri Alliance for Freedom, said the auditor’s attacks on his client “are designed to distract from the substantive issues at hand.”

“She has refused to produce any emails from her first 18 months in office. Emails are public records,” Hurst said. “She has refused to produce any text messages from her public cell phone — a phone paid for with taxpayer funds. Texts are public records.”

The organization also balked at the idea that it is running interference for the governor to take attention away from his text messaging controversy.

“Lodging a complaint against Nicole Galloway for failing to open her government text messages for public viewing has nothing to do with anyone except Nicole Galloway,” Ansley said.

Missouri Alliance for Freedom was founded in 2013. In addition to Ansley, who is the former executive director of the Missouri Republican Party, the nonprofit’s leadership includes James Thomas III, a Kansas City attorney tied to numerous campaign committees used over the years by Republican political consultant Jeff Roe.

The nonprofit is represented by the law firm of Missouri GOP Chairman Todd Graves. St. Joseph businessman and prominent Republican donor Stan Herzog is widely believed to be the group’s primary backer.

A political action committee connected to Missouri Alliance for Freedom spent $110,000 in October helping elect a Republican running for a Jackson County-based seat in the state senate.

Galloway was appointed as auditor in 2015 after the suicide of then-auditor Tom Schweich. She and U.S. Sen. Claire McCaskill are the only Democrats who hold statewide offices in Missouri, and both will seek re-election next year.

©2017 The Kansas City Star (Kansas City, Mo.) Distributed by Tribune Content Agency, LLC.