Appeals court revives AG candidate’s Sunshine Law suit

Elad Gross

A Missouri appeals court has held that public governmental bodies cannot use a provision outlining fees for electronically maintained records to assess the cost of attorney-review time as “staff time” to people seeking records through the Sunshine Law.

In a 2-1 ruling on May 26, a Missouri Court of Appeals Western District panel came to that conclusion in the Sunshine Law suit brought against Gov. Mike Parson by Democratic Attorney General candidate Elad Gross of St. Louis.

The panel sided with Gross on five of his 10 points on appeal, reversing in part a lower-court decision granting the state’s motion for judgment on the pleadings. The panel remanded the case for further proceedings.

Gross’ suit stems from two Sunshine requests he made to the governor’s office in 2018.

In August 2018, Gross sought records and communications exchanged between the governor’s office and a list of individuals and entities that he claimed were associated with “dark money” contributions during former Gov. Eric Greitens’ term in office.

The governor’s office responded with a $3,618 invoice for research/processing the request. The breakdown was for slightly more than 90 hours of work at a rate of $40 per hour.

In October 2018, Gross sued the governor and the governor’s custodian of records in Cole County Circuit Court, claiming they violated the Sunshine Law.

The state filed an answer and a motion for judgment on the pleadings, which Judge Patricia S. Joyce granted in 2019, dismissing Gross’ petition.

On appeal, Gross argued that Joyce erred in entering judgment on the pleadings because, under a proper interpretation of the Sunshine Law, the governor’s office impermissibly charged fees for attorneys’ research as a requirement for Gross to access public records.

In the Western District’s majority opinion, Judge Gary D. Witt said that the relevant statute, Section 610.026, has two subsections that outline fees for different types of records. He said Gross’ request was potentially governed by both.

The first allows for a public governing body to charge a requester for search, research and duplication time for normal-size paper records.

The second governs fees for providing access to records maintained on computers. The law allows fees for “staff time, which shall not exceed the average hourly rate of pay for staff of the public governmental body required for making copies and programming.”

The governor’s office asserted that it should be able to charge fees under the second subsection for attorney review, particularly to determine whether records are statutorily closed or contain privileged information. Witt and Judge Mark D. Pfeiffer disagreed.

They ruled that the second subsection does not include a provision for “research” fees for attorney time to be assessed to the requester.

“Instead, it provides for staff time for activities directly related to providing access to electronic records,’” Witt said.
“ . . . We find no authority in the language of the statute in Subsection (2), for a governmental body to assess research fees or attorney fees to a requester of records covered under Subsection (2).”

Judge Alok Ahuja issued a concurring opinion. In it, he agreed with the majority that reversal was required on the same point but for a different reason. He said it appears from the briefing that the governor’s office may have significantly exceeded the amount it was entitled to charge Gross for services performed by its staff attorneys.

Ahuja disagreed with the majority on the issue of staff time. He held that public governing bodies could recover fees for the work of in-house attorneys to review documents.

On the whole, the court’s ruling is “a very good decision for transparency,” Gross said. He said the court’s ruling on attorney-review fees for electronically maintained records in particular will have big implications for those litigating Sunshine Law cases.

A spokesman for the Missouri Attorney General’s Office declined to comment on the ruling.

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