July 11, 2008

Judge Takes Weekend to Consider Arguments in Lawsuit Over Governor’s E-Mails

By Jason Noble, The Kansas City Star, Mo.

Jul. 11--JEFFERSON CITY -- Attorneys on Thursday argued two motions in a lawsuit over access to e-mails from the governor's office, but a Cole County judge took no action in the hearing.

In one motion, lawyers for Gov. Matt Blunt argued for dismissal of the lawsuit. In the other, an attorney representing The Kansas City Star and two other media outlets sought to join the case to compel the governor's office to release previously requested e-mail records free of charge.

After hearing arguments and questioning lawyers for about two hours, Circuit Court Judge Richard Callahan said he would consider the issues over the weekend and issue rulings next week.

The lawsuit stemmed from Attorney General Jay Nixon's appointment last fall of former Missouri Highway Patrol Chief Mel Fisher to investigate the governor's e-mail retention practices. Nixon had allegedly received a tip that someone in the governor's office had ordered employees to put backup tapes containing e-mails requested under the state's Sunshine Law in line to be overwritten.

In January, Fisher requested 45 separate sets of documents from the governor's office, but he was rebuffed and then asked to pay hundreds of thousands of dollars to comply with the request. Fisher filed the lawsuit in May to gain access to the documents.

In their arguments Thursday, attorneys for Blunt questioned whether Fisher had standing to bring the case.

Blunt's lawyer and former state Supreme Court judge John Holstein argued that it was unclear whether Fisher was representing himself in the lawsuit as an agent of Nixon's office or as a private citizen.

Chet Pleban, Fisher's attorney, dismissed the argument as an issue of semantics: By virtue of his appointment by Nixon, Fisher was acting as a special assistant attorney general, a title that gives him standing to sue on the attorney general's behalf.

Callahan also heard arguments for and against allowing three media outlets -- The Star, The St. Louis Post-Dispatch and The Associated Press -- to join the suit.

All three requested copies of e-mails from the governor's office last fall and were either denied or told they would be charged thousands of dollars to complete the requests.

A motion filed by the media argues that they meet the test required of parties seeking to intervene in a lawsuit. According to the motion, the media have an interest in the subject matter of the suit, the outcome of the suit could affect that interest, and the parties currently involved in the suit may not protect those interests.

"We're asking you to let us in to protect the rights of those who originally requested these records," said Joe Martineau, the lawyer for the media.

Attorneys for the defendants disagreed.

James Meadows, an attorney for the governor, said the media's interest in preserving the e-mails was adequately represented by Fisher, who is seeking preservation and access to a far wider range of documents that includes the individual requests of the newspapers and wire service. He also argued that the media's motive in seeking the documents was simply commercial.


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