In the latest rebuke of the way Missouri officials handle public records requests, the Missouri Supreme Court on Tuesday unanimously ruled that government agencies can’t charge fees for the time that attorneys spend redacting documents before making them public.
The 6-0 decision came in a case filed by Elad Gross, a St. Louis lawyer who unsuccessfully sought the Democratic nomination for Missouri attorney general last year.
In 2018, Gross filed a Sunshine Act request seeking records related to campaign contributions made to now former Gov. Eric Greitens—part of Gross’ effort to uncover the use of “dark money” by nonprofit organizations in Missouri.
Gov. Mike Parson’s office responded by informing him it would cost $3,618 to produce the documents, and take up to 120 days to provide them.
Gross then filed a second Sunshine Law request seeking records about the state's response to his original Sunshine Law request. The governor’s office responded by providing Gross with 57 pages, two of which were partially redacted.
Gross ended up suing, claiming the fees were excessive and that the responses from the governor's office violated the law’s requirement to explain any redactions and delays in providing requested documents.
A Cole County judge dismissed the case as a matter of law, but on appeal the Supreme Court held that Gross’s pleadings were sufficient to allege violations of the Sunshine Law.
Until now, many state agencies have charged for attorney review time to determine whether requested records contain privileged information or information otherwise exempt from disclosure. But in its decision, the Supreme Court ruled that the law only authorizes fees for the time spent fulfilling public records requests, not the time used to determine what’s exempt and not exempt from disclosure.
“The Supreme Court’s decision restores public access to public records by declaring illegal the practice of government agencies charging exorbitant ‘attorney review time’ to effectively deny access to public records,” said Bernie Rhodes, a media lawyer in Kansas City who filed a friend-of-the-court brief in the case. “This is a resounding victory for government transparency in Missouri.”
Last year, Rhodes prevailed in a lawsuit he filed against the Missouri Department of Health and Senior Services on behalf of Reclaim the Records, a California-based nonprofit that makes public records available online for genealogical and historical researchers.
The same Cole County judge who ruled against Gross found that the department violated the Sunshine Law when it sought to charge Reclaim the Records nearly $1.5 million to provide historical birth and death records and then denied the group’s request altogether.
The department was ordered to pay Reclaim the Records’ legal fees, and this week it paid Rhodes more than $157,000 in attorney’s fees in addition to $12,000 in fines.
Gross said the Supreme Court’s decision on Tuesday will reverberate widely throughout Missouri government.
“It’s a very big ruling that will have huge implications for transparency and accountability in our state, especially at a time when, unfortunately, we’ve seen our government using our tax money to hide quite a bit from the public,” he said. “So a lot of those abuses will end as a result of this case.”
Chris Nuelle, a spokesman for Missouri Attorney General Eric Schmitt—whose office represented the governor’s office in Gross’ lawsuit—declined to provide comment because the case is still ongoing.
Gross said he's continuing to seek the campaign finance records that were the subject of his Sunshine Law request.
"At the time this all happened, a subpoena had already been issued for Greitens and his former attorney, Michael Adams, who's now the secretary of state of Kentucky," Gross said. "So I'm currently in the discovery phase and looking forward to talking to both of them under oath."
