Missouri High Court Says State Can’t Charge Attorney Fees for Sunshine Law Records Requests

JEFFERSON CITY, Mo. (CN) — Government entities cannot charge for time attorneys spend redacting documents requested under the Sunshine Law, the Missouri Supreme Court ruled on Tuesday.

In a 6-0 decision, the high court found that Missouri’s Sunshine Law allows government entities to charge public records requesters for research and staff time, but that attorney review time doesn’t qualify as either.

“Attorney review time has no relation to providing ‘access to public records maintained on computer facilities, recording tapes or disks, videotapes or films, pictures, maps, slides, graphics, illustrations or similar audio or visual items’ or making ‘paper copies larger than nine by fourteen inches,’” Judge Patricia Breckenridge wrote in the 27-page opinion.

For that reason, the judge wrote, the section of the law allowing for fees for staff time does not authorize government entities to charge for attorney review time.

The judge also noted that because the law requires government entitiest to "separate exempt and non-exempt material without regard to any particular records request," attorney review time cannot be considered research time required for fulfilling requests.

The decision revives a lawsuit filed by Elad Gross, a Democrat who ran for state Attorney General in 2020.

Gross claims Governor Mike Parson, a Republican, charged him $3,618 for records relating to former Governor Eric Greitens in 2018, which included more than 90 hours of time for “research and processing” at $40 per hour.

Gross sent the Governor’s Office a letter asking that the fees be waived since his request was serving a public interest instead of a commercial interest, according to court records. He also claims he asked the Governor’s Office to provide a further explanation of the fees if his request was denied.

In the process, Gross sent a second request for records with the same fee request.

Parson’s office responded by waiving the fees for the second request, but did not respond to the first request prompting Gross to file his suit.

The state high court’s decision ruled a Cole County judge erred in dismissing Gross’ lawsuit and remanded the claims back to the state court for further proceedings.

A spokesman for the Missouri Attorney General’s office did not immediately respond to a request for comment.

Gross filed his lawsuit on Oct. 17, 2018. In it, he claims the Governor’s Office knowingly violated the Sunshine Law by ignoring his request for fee waiver, by failing to provide a detailed explanation of the cause for delay in producing the records and by failing to provide the earliest time and date the requested records would be available.

“The Governor’s Office did not provide the ‘earliest time and date’ the records would be available for inspection because it conditioned its response on Mr. Gross’s payment of attorney review time,” Breckenridge wrote. “While the Governor’s office was authorized ... to require advance payment of statutorily authorized copying fees, the Governor’s Office was not authorized to request payment of attorney review time prior to making copies.”

The suit also claims that $40 per hour is an excessive charge.

Breckenridge noted in the opinion that Gross informed the Governor’s Office of the requirements of the Sunshine Law, but the office still refused to comply.

“The reasonable inference that can be drawn from these allegations and the incorporated facts related to Mr. Gross’s first records request is that the Governor’s Office violated the law in the ways Mr. Gross alleged and knew it was violating the law when it took the challenged actions (i.e., charged $40 per hour for research/processing time, failed to provide the earliest date records would be available, and failed to provide a detailed explanation of the cause for delay),” Breckenridge wrote.

Follow @@joeharris_stl

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.

Email *

Submit