MU professor, AG candidate argues his emails are not public record

An MU law professor and candidate for Missouri’s attorney general pushed back against a lawsuit filed against him over an open records request.

Josh Hawley won the Republican nomination for the spot earlier this month, amidst a contentious race against state Sen. Kurt Schaefer by more than 30 points. He will face former Cass County prosecutor Teresa Hensley in the November primary.

In May, former state representative Kevin Elmer filed a lawsuit against Hawley, the UM System and law school dean Gary Myers over a Sunshine request he made in 2015. Elmer said the parties involved conspired to withhold much of the request, which involved a years-worth of emails and phone records from Hawley before he announced his candidacy for attorney general. Elmer said he paid $5,000 for the request, and claimed “unjust enrichment” by the UM System and record custodian Paula Barrett, as well as to investigate “Hawley’s improper comingling [sic] of University assets and personal political activities” before the election.

Attorneys for the defendants, though, agree the lawsuit is politically motivated. John Ohlendorf, the Washington, D.C.-based attorney for Hawley, and Skip Walther, who represents the UM System and Myers, said the suit contains “immaterial, impertinent and/or scandalous accusations.” Ohlendorf said that Elmer’s lawsuit doesn’t claim how he was damaged by the situation, but only that he was, which is grounds for dismissal.

Hawley’s motion to dismiss also focuses on whether or not the professor should be subject to the Sunshine Law at all. Case law shows that only “public governmental bodies” are subject to an open records law – in this case, the UM System Board of Curators. This distinction between the Board of Curators and the University itself exempts Hawley’s emails and phone records.

“Because Mr. Hawley’s duties are not alleged to involve governance of the University, any records he retains are not subject to disclosure under the Sunshine Law,” Ohlendorf said.

Hawley’s argument also claims that a “conspiracy” claim won’t succeed, since each defendant works for the same group. Since Hawley, Myers, Barrett and the University “are not legally distinct,” the groups cannot legally conspire with themselves.

Ohlendorf also feared a “chilling effect” if Hawley had to produce his emails.

“An interpretation of the Sunshine Law that rendered every professor’s email inbox subject to an open-records request would have a dangerous chilling effect on academic freedom and robust debate,” the motion said.

Elmer’s attorney, Jane Dueker, did not respond to a request for comment Friday.

Hawley’s campaign manager, Scott Paradise, once more rebuffed the “political establishment” as the ones responsible for the suit.

“From the beginning of our campaign, the political establishment in Jefferson City has tried to bully and intimidate us.,” he wrote in a statement Friday night. “It hasn’t worked. Voters rejected these sleaze tactics by a nearly 30-point margin. This frivolous legal suit is just another attempt by the corrupt establishment to get its way. It won’t work either.”

Hawley is currently still on unpaid leave from the university as he runs for office. That unpaid leave expires on August 31, according to UM System spokesman John Fougere.