As a member of the public, you have a right to review government documents and attend public meetings under both state and federal law. At the state level, the law is referred to as the Sunshine Law (Mo. Rev. Stat. § 610.010 of the Missouri Revised Statutes). At the federal level, the Freedom of Information Act (FOIA) governs access to public documents and the “Government in the Sunshine” Act governs access to public meetings. As an environmental advocate, reviewing public records and attending public meetings can help you ensure that government agencies follow the law when making decisions that impact the environment.
A. Public Records Laws
What are public records laws?
As a member of the public, you have a right to review government documents and attend public meetings under both state and federal law. At the state level, the law is referred to as the Sunshine Law (Mo. Rev. Stat. § 610.010 of the Missouri Revised Statutes). At the federal level, the Freedom of Information Act (FOIA) governs access to public documents and the “Government in the Sunshine” Act governs access to public meetings. As an environmental advocate, reviewing public records and attending public meetings can help you ensure that government agencies follow the law when making decisions that impact the environment.
Most reports, documents, correspondence, and permits filed with the government become public records and are available for review at agency offices. Environmental laws and regulations require that agencies and permit holders gather, produce, record, and report much of this information. For example, when companies violate their permits or accidentally release toxic chemicals, the law usually requires those companies to file prompt reports. Additionally, the law often requires permit holders to monitor and file reports about their discharges to show whether or not they are complying with permit limits.Companies submit these reports to agencies such as the Missouri Department of Natural Resources (DNR). Types of records you may request include:
Research data used in decision-making or rule-making
- Inspections and inspection reports
- Internal reporting (e.g. daily records of water levels, manure application)
- Notices of violations (NOV)
- Letters of warning (LOW)
- Maps
- Industry reports (for example, reports of monitoring results or pollution incidents)
- Permits and permit applications
- Environmental Assessments (EA) and Environmental Screening Worksheets (ESW)
- Meeting minutes
- Some forms of correspondence between agencies and permitted entities (mail, electronic, etc.)
Generally, if you visit a government agency office, you can ask the person on duty for the record(s). Depending on the agency, however, you may need to provide a written request to review public records. You may also choose to request records in hard copy or electronically instead of physically visiting the agency office. This section details why and how to request public records.
Missouri Sunshine Law
The full text of the Missouri Sunshine Law is available here.
You can access public information for local and state agencies by visiting them in person. Alternatively, you may be able to find the same information on an online public government database. For example, DNR scans paper files and makes many documents available online. You can find many online documents here. However, some agencies do not have online databases and documents may be eligible for public review under the Missouri Sunshine Law even if they do not appear in a database. If you do not find the information you are looking for, you may consider submitting a public records or “Sunshine” request. See the Attorney General Office’s list of the “Top 10 Things to Know About the Missouri Sunshine Law”.
Every local and state office in the state of Missouri must have a designated person called a Custodian of Record to handle Sunshine requests. You may submit your request in writing via mail or electronically via email; either way, you should direct your request to the Custodian of Record. Some agencies even provide a sample request form and allow you to make and track your request through an online portal. For example, DNR includes the following request form on its virtual Public Records Center under ‘Submit a Request’. You can see what the online request form looks like below:
Typically, you must pay to complete a Sunshine request. The cost of the request is often determined based on how long it takes to fill, the number of documents that must be copied and the average hourly rate of pay for clerical staff in that agency.
Once the request is received the governmental body has three days to get back to you about your request and tell you whether and how they are handling it. Continue reading to learn about fee waivers (2-B), how to appeal a denied request (2-C), and look at sample public record requests (2-D).
Freedom of Information Act (FOIA)
At the federal level, the statute that grants the right to review public records is the Freedom of Information Act (FOIA). FOIA provides that “any person” can request information from the government without requiring identification of the requestor or an explanation of why the requestor wants the information. Limitations and exceptions restrict public access to some categories of information, such as:
- Documents classified as secret in the interest of national defense or foreign policy;
- Documents related solely to internal personnel rules and practices;
- Confidential enforcement information;
- Confidential business information;
- Inter-agency or intra-agency communications, except under certain circumstances;
- Personnel, medical or similar files that, if disclosed, would constitute an invasion of privacy; and,
- Certain information concerning gas or oil wells.
As you can see, if the government does not want to give up information, they have plenty of ways to get around it. You may need to appeal a decision not to share information and there’s more on that below.
See a list of all nine FOIA exemptions established by Congress on the Office of Information Policy’s FOIA FAQ Page. If protected information can easily be separated or removed from the requested files, the agency should make the remainder publicly available. In this case, protected information will be removed or “redacted” from the document. Usually, portions of text will be grayed or blacked out with the exemption code over the information. For example, a FOIA request document with information redactions may look like this:
The letters and numbers in parentheses indicate the exemption this information falls under in the relevant federal law.
Once the agency receives a FOIA request, it has 20 business days to reply with its decision of whether it will comply with no automatic extensions. Due to the high volume of requests in some offices, though, agencies typically take more time to fulfill requests. To save time, you may want to make sure the information is not already available online, in a library, or in an agency reading room.
To compensate for the time and effort spent in reviewing and copying requested documents, federal agencies may charge for copying costs and some other costs. Each federal agency has its own regulations outlining its FOIA program, including procedures for the disclosure of records, confidentiality, fees and exemptions. You may want to check the agency’s rules to be sure that your request meets its requirements.
There is also an online FOIA request portal which simplifies the process. The online form allows you to select the agency from which you are requesting information, describe the request, attach supporting files, and request a fee waiver.
For resources on how to request CAFO-specific documents under the Missouri Sunshine Law and FOIA, see the ‘Requesting Public Records’ section of MCE’s CAFO Advocacy Toolkit.
B. Fee Waiver Requests
Missouri Sunshine Law Fee Waivers
Typically, you must pay to complete a Sunshine request. However, Section 610.026(1) of the Missouri Sunshine Law authorizes records requests to be completed without charge or at a reduced charge when the request is “in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the public governmental body.”
There is not an option to request a fee waiver through DNR’s online request form, but you may mark that you would like to be contacted if the fee to complete your request exceeds a certain amount. In a written request, you will include a statement that you request all fees associated with filling the request be waived. To demonstrate that your request will serve public interests, you should also include a brief explanation of how you will use the information you expect to obtain through the request and why that information will be beneficial. For example:
“MCE is a non-profit, grassroots, citizen action group which is dedicated, in part, to educating its members by providing awareness of governmental operations and activities. MCE maintains a website, prepares a regular newsletter, sends e-alerts and holds community meetings regarding environmental issues of concern to its members and the general public. MCE uses its capacity to make complex legal and factual information available to the public. This request will significantly contribute to the public’s understanding of Concentrated Animal Feeding Operations (CAFOs), their compliance with state policies, and regulatory oversight.”
Fee waivers are not always accepted. However, individuals and organizations reserve the right to appeal a denied fee waiver and narrow or otherwise modify their request if the expected copying fees are in excess of a specified amount.
Freedom of Information Act Fee Waivers
There is no fee required to submit a FOIA request, however the agency may charge for the time it takes to complete the request. Different agencies may charge different rates for completing requests depending on hourly staff wages and other factors. There is usually no charge for the first two hours or 100 pages of duplication towards completing the request; so it pays to make your request as precise as possible to get what you want in as quick a time as possible.
You may specify the maximum amount that you are willing to pay to complete your request.The online FOIA request form provides a ‘Yes/No’ option to request a fee waiver and a fill-in-the blank box to specify the maximum amount you are willing to pay to complete the request. The agency is expected to notify you if they anticipate that completing the request will exceed this amount and offer you a chance to narrow or otherwise modify the request. If you agree to a certain fee, you may be expected to pay it even if the records you request can not be found.
The same general guidelines for a Sunshine request fee waiver apply for FOIA requests:
“Under the FOIA, fee waivers are limited to situations in which a requester can show that the disclosure of the requested information is in the public interest because it is likely to contribute significantly to public understanding of the operations and activities of the government and is not primarily in the commercial interest of the requester.”
Therefore, you will want to include a statement demonstrating that your request will serve public interests (like the example for a Sunshine request above). See the Office of Information Policy’s FOIA FAQ page for more details about submitting your request and fee waiver.
C. Appeals Process
Missouri Sunshine Law Appeals Process
If a state or local agency denies your records request and/or fee waiver, you may appeal that request to the Attorney General by filling out a Sunshine Law Complaint. The Complaint form is available online and may be downloaded as a PDF. If you were unlawfully denied access to public records or meetings, the Attorney General may take legal action against the responsible agency.
Freedom of Information Act Appeals Process
If you are dissatisfied with an agency’s response to your FOIA request, you may file an administrative appeal. The following agency determinations may warrant an appeal:
- Refusal to release a record, either in whole or in part;
- Determination that a record does not exist or cannot be found;
- Determination that a request does not reasonably describe the records
- Determination that the record you sought was not subject to the FOIA;
- Denial of a request for expedited processing;
- Denial of a fee waiver request; or
- Fee category determination.
We recommend you seek legal advice when filing an appeal as there are specific rules to ensure that your appeal is received and is in a valid format.
D. Records Requests Templates
To get you started with your request, below are two sample records requests: one under the Missouri Sunshine Law and one under the Freedom of Information Act. Generally, if you are asking for information from a Missouri state or local agency, you should use the Sunshine Law template. If you are asking for information from a federal agency, you should use the Freedom of Information Act template.
As always, do not hesitate to call agency personnel and ask for help in obtaining documents. Often, they will be friendly and helpful. It is best, however, to know your rights and be prepared to write a letter or call a lawyer. Occasionally government personnel may try to withhold information that the law entitles you to see.
You may ask that these records be shared electronically. Accepting electronic records may cut down on your costs. You may be asked to provide a flash drive. In some cases, you may have access to the records but the agency will not provide copies, in which case go prepared with a camera or scanner.
Missouri Sunshine Law Records Request Template
The following template comes from the National Freedom of Information Council. It has been slightly modified:
[Your Name or Organization’s Name]
[Street Address]
[City, ST ZIP Code]
[Date]
[Name of Custodian of Record]
[Agency Name]
[Department Name (if applicable)]
[Street Address]
[City, ST ZIP Code]
Dear [Custodian of Record]:
Under the Missouri Sunshine Law § 610.023 et seq., I am requesting an opportunity to inspect or obtain copies of public records that [Describe the records or information sought with enough detail for the public agency to respond. Be as specific as your knowledge of the available records will allow. But it is more important to describe the information you are seeking.]
If there are any fees for searching or copying these records, please inform me if the cost will exceed $______. However, I would also like to request a waiver of all fees in that the disclosure of the requested information is in the public interest and will contribute significantly to the public’s understanding of ___________. [Here, you can identify yourself as a non-profit organization or public interest group if applicable and state that your request serves public interests].This information is not being sought for commercial purposes.
The Missouri Sunshine Law requires a response within three business days. If access to the records I am requesting will take longer than this time period, please contact me with information about when I might expect copies or the ability to inspect the requested records.
If you deny any or all of this request, please cite each specific exemption you feel justifies the refusal to release the information and notify me of the appeal procedures available to me under the law.
Thank you for considering my request.
Sincerely,
[Your Name or Organization’s Name]
[Your Title]
[Your email address]
[Your phone number]
The above template can be downloaded here. You may also review a complete Sunshine request that was submitted by MCE here.
Freedom of Information Act Records Request Template
The following template comes from the National Freedom of Information Council. It has been slightly modified:
[Agency Head or Freedom of Information Act Officer]
[Name of Agency]
[Address of Agency]
[City, ST Zip Code]
Re: Freedom of Information Act Request
Dear [Name of Agency Head or Freedom of Information Officer]:
This is a request under the Freedom of Information Act.
I request that a copy of the following documents [or documents containing the following information] be provided to me: [identify the documents or information as specifically as possible].
[Optional] I am willing to pay fees for this request up to a maximum of $_____. If you estimate that the fees will exceed this limit, please inform me first.
[Optional] I request a waiver of all fees for this request. Disclosure of the requested information to me is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government. [Here, you can identify yourself as a non-profit organization or public interest group if applicable and state that your request serves public interests]. This information is not being sought for commercial purposes.
Thank you for your consideration of this request.
Sincerely,
[Your Name or Organization’s Name]
[Your Title]
[Your email address]
[Your phone number]
The above template can be downloaded here. You may also review a complete Sunshine request that was submitted by MCE here.
E. Public Meetings
Local, state and federal government agencies conduct frequent meetings. The law requires that many of these meetings be open to the public. You can learn when public meetings will be held through public notices. Read more about how to find and receive public notices from government agencies in Part 1D.
Missouri Sunshine Law and Public Meetings
The Sunshine Law defines a public meeting as “any meeting of a public governmental body subject to sections 610.010 to 610.030 at which any public business is discussed, decided, or public policy formulated.”
A meeting must be open to the public unless it meets criteria listed in Section 610.021, RSMo. that direct the meetings, records, and votes to be closed. In other words, a public governmental body is almost never required to close a meeting. Meetings may not be closed unless the majority of the public governmental body conducting the meeting agrees to do so. If any member of a public governmental body believes the motion to close the meeting is unlawful, this objection should be recorded in the minutes. A public governmental body may be authorized to close a meeting if it involves litigation, confidential and/or privileged communication with attorneys; lease, purchase or sale of property by a public governmental agency; or hiring, discipline and/or promotion of employees. See Section 610.021, RSMo for the complete list of closure authorization criteria. Meetings should only be closed to the extent necessary for the specific closure reason. Therefore, meetings may be partially-closed and include open sessions, as well. Note that the unauthorized recording of any closed meeting or session is considered a misdemeanor. If a meeting is closed, a notice must still be given that includes the date, time, and place of the meeting, and the specific reason in Section 610.021, RSMo., that allows for closing the meeting. The notice is not required to include a tentative agenda.
For meetings by federal agencies you’ll want to look at the Government in the Sunshine Act.
“Government in the Sunshine” Act and Public Meetings
At the federal level, the “Government in the Sunshine” Act is the piece of federal legislation that governs public access to meetings of federal agencies. The Government in the Sunshine Act only applies to agencies headed by a body composed of two or more individuals – the majority of whom must be appointed by the President and confirmed by the U.S. Senate. For example, the U.S. Environmental Protection Agency (EPA) and U.S. Department of Interior (DOI) are exempt because each has a single head: the Administrator and the Secretary, respectively. However, the Government in the Sunshine Act applies to agencies like the Federal Energy Regulatory Commission (FERC) or the Nuclear Regulatory Commission (NRC), which are headed by commissions.
Regardless of the type of agency, the Government in the Sunshine Act also limits the meetings available to the public by distinguishing between the topics to be discussed and the people in attendance. Meetings must be made open to the public when there are enough members in attendance to take action on behalf of the agency. Like the Sunshine Law for Missouri, there are also exemptions to the Government in the Sunshine Act that allow for meetings or portions of meetings to be closed to the public if an agency may disclose or discuss matters of national defense or foreign policy; privileged and/or confidential financial information; or person(s) accused of a crim. See 5 U.S.C. § 552b. (c) for a complete list of exemptions. The General Counsel or chief legal officer of an agency must publicly certify each meeting closure and specify the relevant exemptive provision, to be maintained by the agency along with the closed meeting’s minutes. Meeting minutes and transcripts should be made publicly available unless they contain information which qualifies the meeting for closure.
The Federal Advisory Committee Act (FACA) is another federal law regarding open access to government meetings. Specifically, FACA provides for public access and public notice in the Federal Register to most meetings of committees that advise federal agencies. For these advisory committees, FACA also requires that the minutes, records, and reports be made publically available.