A media organization in Kansas City is in the midst of a Sunshine Law fight with Clay County after an attempt to see how much an attorney was charging the county resulted in a large legal bill.
“If this is not ‘Alice in Wonderland,’ I don’t know what it is,” said Bernie Rhodes of Lathrop Gage, an attorney for The Kansas City Star. “Where does the rabbit hole end?”
Cypress Media LLC, which operates The Star, sued Clay County in May alleging the county had violated the Sunshine Law by trying to charge The Star $4,200 to fulfill a request for records. A reporter for The Star, curious about the county’s contract for outside legal work with Spencer Fane, had requested copies of itemized billing statements and invoices.
W. Joseph Hatley, a Spencer Fane partner representing the county, said in a letter to The Star’s attorney that it would take him 15 minutes per page to review the 45 pages of his own bills for any privileged material. The resulting day-and-a-half job, Hatley estimated, would come to about $4,200 at $373.50 per hour, the rate he charged the county. (Hatley’s standard rate, according to the court filing, was $415 an hour.)
Rhodes, in a letter responding to Hatley, called that an “inflated” estimate meant to hide the billing entries from disclosure. To illustrate, Rhodes said he was able to review a similar stack of billing documents “during a single episode of NCIS: New Orleans (including fast-forwarding through the commercials).”
Rhodes charges The Star a rate of $425 per hour, discounted from his usual $610, he said. The total cost for his review was $382.50.
The lawsuit has been delayed in Clay County Circuit Court while the Supreme Court appointed an outside judge to handle the matter. The county hasn’t formally responded to the suit. Hatley didn’t respond to a request for comment.
If The Star ultimately prevails, it might be able to recover its attorneys’ fees. Until recently, actually recovering such fees seemed a dim possibility. But recent rulings have given some lawyers hope.
In February, Jackson County Circuit Judge S. Margene Burnett ordered the city of Raytown to pay $4,000 in civil penalties and more than $38,000 in attorneys’ fees after it refused to release records concerning an intersection where a fatal vehicle crash occurred.
The city had cited the information’s potential use for litigation against the city, but Burnett found the refusal constituted a knowing and purposeful violation of the Sunshine Law. The city, she wrote, had tried to use the law as a “shield to hide behind rather than shed light on potentially inappropriate government activity.”
Plaintiffs who are wrongfully denied access to public records may recover their attorneys’ fees at the judge’s discretion if the agency denial was “knowing,” and the fee award is mandatory if the violation is “purposeful.” But in 2016, the Missouri Supreme Court held in Laut v. City of Arnold that a knowing violation “requires proof that the public entity knew that its failure to produce the report violated the Sunshine Law.” A dissent in that case said such a stringent definition made a knowing violation the “functional equivalent” of a purposeful violation.
The Jackson County ruling came a month after the Court of Appeals Western District affirmed a different judge’s ruling last year that the Cole County Prosecuting Attorney had violated the law by failing to turn over records for a drug task force. That case involved a $12,000 civil penalty and an award of $14,000 in attorneys’ fees.
Rhodes said despite those victories, he still advises clients to be aware that they might get stuck with the bill. As a result, he said, most are limiting Sunshine Law suits to only those situations that are plainly illegal and serve an important point.
“I’m happy to ask for fees, but they should be prepared to go forward with the lawsuit without assuming they’re going to get their fees paid,” he said.
The case is Cypress Media LLC v. Clay County, 19CY-CV05332.