Western District probes Sunshine Law research fees

Jessica Shumaker//April 29, 2020

A Missouri appeals court is considering the case of a St. Louis attorney who unsuccessfully sued Gov. Mike Parson after Parson’s office denied his records requests regarding former Gov. Eric Greitens’ administration.

On April 22, Elad Gross argued in part before the Missouri Court of Appeals Western District that the judge overseeing the case, Cole County Judge Patricia Joyce, erred in dismissing his case because the state impermissibly charged him attorneys’ fees as a requirement for him to access public records.

Gross sued after he was charged $40 per hour for his request. The state asserted it charged that rate because an attorney needed to review the documents to ensure compliance with attorney-client privilege.

Gross, who also is a Democratic candidate for Missouri Attorney General, sued Parson and Custodian of Records Michelle Hallford in Cole County Circuit Court in October 2018. He alleged they violated his right to inspect records under the Sunshine Law. Joyce dismissed Gross’ petition in July 2019. His appeal followed.

During arguments, Gross said the court will have to “determine whether transparency in Missouri’s government will belong to the public, members of the media, or just the few folks who can afford transparency.”

The three-judge panel questioned both Gross and Deputy Attorney General Jeremiah Morgan, who represented the state, on the interplay between two subsections of Section 610.026 of the Missouri Revised Statutes.

Subsection one sets out fees for copying public records and allows research time to be recoverable in charges to the requester. The second subsection focuses on fees for providing access to public records maintained in computer facilities, as well as large-format paper records.

During Morgan’s arguments, Judge Mark D. Pfeiffer said he didn’t see anything focused on allowing research time in subsection two.

“If this is a subsection two request, how can you charge for research time when subsection two doesn’t talk about research?” he said.

Judge Alok Ahuja pressed Gross on whether he believes the Sunshine Law requires governmental bodies to segregate records, which would require an attorney to review records.

“If they’re required to do that in response to your request, why is the staff time required to identify and segregate those records not recoverable?” he asked. “Even if it may be limited to $19 an hour, which is the rate required for a clerical employee.”

Gross said if the state had charged only $19 an hour for his request, it would be on better footing.

“I would say that actually the statute requires the government to separate exempt from non-exempt material, whether I’m making a request or not,” he said.

Four organizations also filed briefs in support of Gross: The Sunshine and Government Accountability Project, the ACLU of Missouri, the Freedom Center of Missouri and the Missouri Press Association.

The case is Gross v. Parson et al., WD83061.