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State Treasurer Eric Schmitt to become Missouri AG after Hawley elected to Senate

State Treasurer Eric Schmitt addresses the press on Tuesday, Nov. 13, 2018, after Gov. Mike Parson announced Schmitt will become Missouri attorney general when current Attorney General Josh Hawley resigns to become a U.S. senator. The press conference was held in the governor's office in Jefferson City. Photo by Laurie Skrivan, lskrivan@post-dispatch.com

JEFFERSON CITY — Attorney General Eric Schmitt has not said whether state agencies may cite the First Amendment to redact public records — and he may not ever answer that question, according to documents reviewed by the Post-Dispatch.

Gov. Mike Parson’s attorneys have cited the First Amendment numerous times as a reason to hide the contact information of private residents from public scrutiny.

Parson’s spokesman has said disclosure of such information may have a chilling effect on individuals contacting their government, and has said the office has redacted such information in the past without citing the First Amendment.

Auditor Nicole Galloway, a Democrat who is considering running against Parson next year, asked Schmitt on May 7 to issue an opinion on the validity of Parson’s First Amendment citations.

“Government should not be in the business of finding ways to hide information from taxpayers, but time and again, we have seen continued efforts to do just that,” Galloway said at the time.

On May 9, Jonathan M. Hensley, deputy general counsel for the attorney general’s office, said in a letter to Galloway that the office had received the “request for an Attorney General’s opinion regarding whether identifying information related to an individual conducting business before a state entity should be redacted under the Sunshine Law.”

But that wasn’t the question Galloway wanted an answer to, Paul Harper, general counsel for the auditor’s office, wrote back on May 14.

“I am writing this letter to confirm that this description was not intended to limit the question asked,” Harper wrote on May 14. “The State Auditor is seeking an Attorney General Opinion on a question of law related to whether the First Amendment of the US Constitution provides an exception to the Sunshine Law such that a government entity can redact, any or possibly all, identifying information related to an individual who is conducting or seeking to conduct business before the entity.”

Steph Deidrick, spokeswoman for Galloway, said the office has not received correspondence from the attorney general’s office since the May 9 letter.

That letter went on to say: “We generally work on the opinion requests in the order that they are received and make every effort to complete them in a timely fashion. We will contact you within 90 days of receipt of the opinion request.”

Chris Nuelle, spokesman for the attorney general’s office, said it is office policy not to comment on pending requests, but said “the request for legal opinion is under review.”

“I cannot fathom the theory under which they came up with that argument, because the First Amendment deals with freedom of speech and the ability to speak what you want to say, and it doesn’t at all deal with public officials closing public records,” said Jean Maneke, counsel for the Missouri Press Association.

She said people who contact the government “know they’re contacting a public official. They know that this is a person that has to do things publicly.”

After Galloway’s office submitted the request, Steele Shippy, the governor’s spokesman, told the Kansas City Star, which first reported the use of the First Amendment citation, that the letter was “yet another lame partisan political attempt.”

Schmitt, a Republican, was appointed by Parson, also a Republican, to be attorney general last year after then-Attorney General Josh Hawley won election to the U.S. Senate.

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