FEATURE Review
by Kenneth Heinz, Principal, Curtis, Heinz, Garrett & O'Keefe, P.C.
News From The Bench Ten Points Of Light: The Case of Gross v. Parson, et al.
If you have been struggling with ambiguities in the Sunshine Law over the past 40 years like me, this is a case to read. In a lengthy opinion and another concurring opinion, the Court of Appeals for the Western District of Missouri recently answered 10 questions that were presented by two Sunshine Law requests made to Governor Parson’s office. Plaintiff Elad Gross sent the Sunshine requests in an attempt to find “dark money” contributions, i.e., anonymous campaign contributions made to circumvent campaign finance laws. Gross made two Sunshine Law requests. To the first request, the Governor’s Office (Office) responded that they would be able to provide a cost estimate within one month. About a month later, the Office sent Gross another letter stating they had found 13,659 documents and that the estimated cost to provide them would be $3,618.40. The Office asked for payment before they would prepare the information and stated that once they received that amount, it would take 120 business days to complete this request. An enclosed invoice estimated that research/processing would take 90.46 hours at the rate of $40 per hour. Gross then sent another letter to the Governor’s Office requesting records regarding the Office’s response to his first request. Several weeks later the Office
responded to the second request with a set of 17 pages of documents with two pages partially redacted. A second set of documents consisted of 40 pages that were not redacted. No charge was made for these documents. Gross then filed a petition in the Circuit Court of Cole County with eight counts. The Governor’s Office filed an answer and motion for judgment on the pleadings. The Circuit Court held a hearing and dismissed Gross’ petition. Gross appealed to the Western District of the Court of Appeals. Gross asserted 10 points on appeal alleging a Circuit Court error in entering judgment in favor of the Governor’s Office. The Court addressed each seriatim. Gross’ first point was that the Office acted arbitrarily in denying his request
to waive or reduce fees. The Court found that Gross failed to properly raise a constitutional challenge on this issue. In his second point, Gross claimed error in charging him attorney fees to access the public records. Since Gross requested both documents and electronic records, the Court addressed each separately. As to documents, Subsection 610.026.1(1)RSMo provided that fees may be assessed for “search, research and duplication time.” The Office argued that the subsection allows for attorney research time to determine whether unclassified documents were open or closed prior to disclosure. Therefore, the Office asserted that an attorney was required to perform research on attorney/client privilege and legal work product. The Court approved charging for attorney review so long as the charge is at the rate of the lowest paid attorney in the office. As to electronic documents, Subsection 2 of Section 610.026.1 allows fees to be charged for “providing access to public records maintained on computer facilities.” However, it limits the fees to “include only the cost of copies, staff time that shall not exceed the hourly rate of pay for staff.” The Court held that with respect to electronic records, it appeared that the person in charge of the search for documents received $19 per hour. Subsection 2 makes no express provision www.mocities.com
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