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DHSS ordered to pay penalties, fees for Sunshine Law violations

A Cole County judge has ordered the Missouri Department of Health and Senior Services to pay $12,000 in penalties and attorneys’ fees after ruling it knowingly and purposefully violated the Sunshine Law by denying a nonprofit group’s records requests.

The ruling came April 15 in a suit brought against the department in November 2016 by Brooke Schreier Ganz, president of the nonprofit organization Reclaim the Records. The California-based organization sought genealogical records from DHSS to make available online at no cost.

According to Judge Patricia S. Joyce’s findings of fact, Ganz emailed the requests that form the basis for the suit to the department in February 2016. She sought the state’s birth and death listings between January 2010 and December 2015.

At first, the department quoted an estimate of $1.49 million for the records. Ganz retained Bernard Rhodes of Lathrop GPM, who worked with the department’s general counsel, Nikki Loethen, to find a more efficient search process to obtain the records.

In a second estimate, the department quoted a reduced charge of more than $5,000, which Ganz continued to protest.

According to the findings of fact, in the background of the estimate discussions, officials from the department discussed the request amongst themselves and were in contact with other states to obtain more information about Ganz.

Former State Registrar Garland Land also sent an email to Dr. Loise Wambuguh, acting bureau chief for the Bureau of Vital Statistics, advising that the department should deny the requests, “require them to take you to court” and use the delay to ask the legislature to change the law in order to close the records Ganz sought.

In August 2016, the department ultimately denied Ganz’s requests, saying it was using its discretion under Section 193.245(1) of the Missouri Revised Statutes to deny them.

Ganz’s suit followed the denial. In her recent ruling, Joyce granted Ganz’s motion for summary judgment.

Joyce said the question before her was whether the statute DHSS used to justify denying the requests “specifically prohibits” the disclosure of birth and death listings. Under the Sunshine Law, records are considered open for inspection unless another statute specifically closes them.

The statute at issue says that “a listing of persons who are born or who die on a particular date may be disclosed upon request.”

“As can be seen, Section 193.245(1) states on its face that ‘[a] listing of persons who are born or who die on a particular date may be disclosed upon request,’ Joyce said.

“As such, it is obvious from the plain meaning of the words used in the statute that it does not ‘specifically prohibit’ disclosure of birth and death lists.”

Joyce said the law does not specifically prohibit disclosure of information, “but instead expressly provides that the government ‘may disclose’ the requested information, under specified parameters or limitations.”

Rhodes said the ruling “confirms what we’ve said for a long time: The presumption of the Sunshine Law is everything is open.”

“When the government wants to rely on an exception, it has to rely on an actual exception, not a maybe,” he said.

Rhodes said Joyce’s ruling is timely because it rejects an argument he is hearing from DHSS and local health departments — regarding the release of COVID-19 data — that they “may disclose” certain records at their discretion, rather than acknowledge that they are required to do so.

Rhodes said he also represents news organization clients that have had some small victories in obtaining releases of data such as the racial breakdown of COVID-19 cases or the zip-code distribution of cases.

But Joyce’s ruling squarely addresses the issue, he said.

“It’s very gratifying in that regard, and it’s very important at this time,” he said.

In addition to her summary judgment ruling, Joyce determined that the department was allowed to charge Ganz $2,557 for the records.

She also determined the department committed knowing and purposeful violations of the Sunshine Law and levied $12,000 in penalties against the department.

Joyce also awarded Ganz attorneys’ fees. Rhodes said Ganz is seeking nearly $150,000 in fees.

A spokesman for the Missouri Attorney General’s Office declined to comment on the ruling but said the department is reviewing the decision and considering its options for appeal.

The case is Ganz v. Missouri Department of Health and Senior Services, 16AC-CC00503.