Secrecy hampers inquiry into Missouri guard actions

2012-05-23T00:10:00Z 2012-06-01T16:20:00Z Secrecy hampers inquiry into Missouri guard actionsBY PHILLIP O'CONNOR • poconnor@post-dispatch.com > 314-340-8321 stltoday.com

After a massive tornado tore through Joplin last May, some Missouri National Guard members sent in to secure the city instead looted it.

When the Post-Dispatch filed an open-records request this month seeking information about the looting, the guard responded as it often does to such queries, by saying it is not subject to the law, which was designed to make government institutions in the state accountable to the public they serve.

Missouri is the only state in the nation that completely exempts the National Guard from state open-records law, according to Sunshine Review, a nonprofit organization dedicated to state and local government transparency. Such broad exemptions allow a public entity to operate in the shadows with little oversight, said Joshua Meyer-Gutbrod of Sunshine Review.

"It goes from allowing an organization to protect important information to providing zero accountability," Meyer-Gutbrod said.

Even the Missouri lawmaker who in 1987 requested that the National Guard be exempt from the state's Sunshine Law said he now believes it was a mistake.

"To be honest about it, I'd have a hard time supporting any government entity paid for by tax dollars being exempted from the open-meetings law," said former Sen. John Scott, D-St. Louis. "I think everybody should be governed by it."

The Missouri National Guard includes more than 11,500 soldiers and airmen and receives the vast majority of its $660 million annual budget from the federal government. But it also has 440 full-time state employees and receives about $37 million from the state.

Yet even a state lawmaker charged with oversight of guard spending in the Missouri Legislature said he had been denied access to information.

Sen. Bill Stouffer, R-Napton, said he sought information this year about allegations a neo-Nazi was serving on a state military honor guard that pays last respects at funerals of Missouri veterans. The request was denied, Stouffer said, based on the open-records law exemption.

As the Post-Dispatch was about to publish a story about the guard's lack of action nearly a year after co-workers had complained about the soldier, a guard spokeswoman notified the newspaper that the soldier had been fired from his state job.

"Missourians prefer open and transparent government," Stouffer said. "Within reason, we ought to be able to request and receive information from the National Guard."

In October, the Associated Press filed an open-records request with the National Guard, the state Office of Administration, the Missouri Highway Patrol and the Department of Conservation seeking details about flights taken on state aircraft by government officials and employees, excluding those for law enforcement purposes. According to the AP, three of the state agencies provided the information within weeks, but despite repeated inquiries by the AP, the National Guard did not provide the flight information until mid-February — more than four months after the original request. The information was provided only after the AP filed an additional federal open-records request seeking details about the guard's policies, procedures and personnel involved in handling requests under the federal Freedom of Information Act.

The Missouri Sunshine Law sets out the specific instances when a meeting, record or vote of a public governmental body may be closed. The law includes 22 exemptions where closed meetings and closed records are authorized, but not required. Among them are the discussion of legal strategy in litigation, the lease, purchase or sale of real estate where public knowledge might affect the sale price, and welfare cases of identifiable individuals.

Jean Maneke, a board member of the Missouri Sunshine Coalition and legal consultant for the Missouri Press Association, said the guard is the only entity in Missouri state government that she is aware of that is completely exempt, noting that even the Department of Revenue, which handles income tax returns, makes certain data available to the public such as salaries and statistics on general tax trends.

"It's very unusual and it's of concern any time you have an entity that chooses not to make itself open to public inspection," Maneke said "That leaves you open to the possibility of some kind of malfeasance that the public doesn't know about."

In such cases, Maneke said, monitoring falls to the state auditor and attorney general, two entities that she said already "have their hands full."

Officials for the National Guard in several other states said they routinely respond to open records requests.

"Really our philosophy is we'll give the maximum amount of information we can under the law as quickly as we can," said Col. Greg Hapgood of the Iowa National Guard.

The same is true in Illinois, where state law closely mirrors the federal Freedom of Information Act, said Tom Banning, attorney adviser for the Illinois Department of Military Affairs, which handles requests.

"It's not policy, it's law and we are bound by it," Banning said.

Maj. Gen. Stephen L. Danner, the Missouri National Guard adjutant general, did not return several calls seeking comment.

A spokesman for Gov. Jay Nixon declined to comment.

In some cases, the Missouri National Guard does not release information that the active duty military readily makes available, such as courts-martial records or other cases involving soldier misconduct.

Such is the case with the looting in Joplin. The guard did not respond to a Post-Dispatch request for all records related to the incident.

In a telephone interview, Brig. Gen. Randy Alewel, commander of the 35th Engineer Brigade, confirmed that members of his unit were involved in the looting.

"We conducted an investigation and disciplinary action was imposed on those soldiers," Alewel said.

But he declined to say how many soldiers were involved, the extent of the looting or what discipline they received.

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