A June 29, 2021 opinion by the Missouri Supreme Court, Gross v. Parson, No. SC98619, clarified several aspects of the Missouri Sunshine Law and serves as a reminder that it is not construed in cities’ favor. In the wake of that decision, cities cannot charge requestors attorneys’ fees for reviewing documents. Additionally, if a city notifies a requestor that it requires more than three business days to respond to a Sunshine request, it must also provide the earliest specific calendar date (and time of day) that responsive records will be available and a detailed explanation of the reason for the delay. Furthermore, cities may need to explain any redactions they make to documents they provide in the response.
The Gross v. Parson case involved two Sunshine requests by Mr. Elad Gross to the Missouri Governor’s Office, which like a city, is a public governmental body subject to the Sunshine law. Mr. Gross asked that fees be waived for both of his requests because they were in the public interest as part of his investigation into the use of “dark money” by nonprofit organizations in Missouri.
In response to the first request, the Governor’s office initially responded that it was working on the request and that it would "be able to provide a response or cost estimate (if applicable) for the records you have requested in approximately one month." The Governor’s office then sent a supplemental response saying it had located responsive documents and included an invoice for “research/processing” time, which included attorney review time. Additionally, the Governor’s office said that once it received payment, “it will take at least 120 days to complete this request.” The Governor’s office made no other response to the first request and did not address Mr. Gross’ request to waive fees. In response to Mr. Gross’ second request, the Governor’s office produced 37 documents, two of which were partially redacted without explanation, and waived fees for the second response. Mr. Gross sued claiming the Governor’s office committed a number of violations of the Sunshine Law. He lost in the trial court on a preliminary motion and appealed. The Missouri Supreme Court ultimately accepted the case, vacated that result, and returned the case to the trial court. Although the results of Mr. Gross’ claims are yet to be determined, the Supreme Court’s opinion does provide some general guidance about certain Sunshine Law issues.
First, the Sunshine Law does not authorize a public governmental body to charge attorney review time for fulfilling records requests. The Supreme Court specifically rejected the argument that such time was necessary "research time" to determine whether records were closed because they contained attorney-client privileged or work product materials. Thus, although such review may be beneficial, cities are unable to recover any of the cost of that process from requestors.
Second, if a city is not able to provide requested records within 3 business days after the day the request is received, the Sunshine Law requires a city to provide a requestor with the earliest calendar date and time the requested records will be available. In Gross v. Parson, the Governor’s office response to Mr. Gross’ first request that records would be available 120 days from payment of its invoice was insufficient. Note that although it was not a specific issue in the case, the Sunshine Law requires a city to provide the earliest specific calendar date and time that records will be available. Accordingly, cities should provide that information in a Sunshine response that advises a requestor that more than three days will be required to respond to their request. For example, such a Sunshine response may include a statement similar to the following: “The earliest date and time your records will be available is [month] [day], 20__ at _:00 __.m.”
Furthermore, a city must provide a detailed explanation for a delay in not producing the requested records within the three days allowed by the Sunshine Law. Here, the Governor’s office provided no explanation to Mr. Gross for its 120-day delay. The Governor’s office later told the Court that the delay was warranted because Mr. Gross's request was "voluminous and complex" and the 120-day estimate was based on a review rate of 150 documents per hour at 10% of the reviewing employee’s time. The Supreme Court said that while this may have constituted a detailed explanation, the Governor’s office never provided the explanation to Mr. Gross. With this in mind, cities should provide a similar, detailed explanation for any delay in responding to a Sunshine request.
Fourth, cities should be aware that the Sunshine Law may require them to explain any redactions they make to records they produce in response to a request under the Sunshine Law. When a public record contains material exempt from disclosure, the Sunshine Law requires a city to "separate the exempt and nonexempt material and make the nonexempt material available for examination and copying." § 610.024.1RSMo. If the separation is “readily apparent,” the public governmental body shall generally describe the material exempted unless that description would reveal the contents of the exempt information and thus defeat the purpose of the exemption." § 610.024.2 RSMo.
Although it is unclear why the Sunshine Law seems to condition the requirement to describe the undisclosed information on whether its separation from disclosed information is readily apparent, redactions are likely to be sufficiently obvious to trigger the Sunshine Law’s possible requirement for an explanation. For example, the response from the Governor’s office to Mr. Gross’ second Sunshine request redacted portions of two pages of records with a solid, black box. However, the Governor’s office provided no explanation as to why it redacted these portions of the responsive records. It did not state the redacted material was privileged attorney-client information or work product or that the records were otherwise closed from disclosure.
Ultimately, the Governor’s office may show that its redaction without explanation was appropriate because the Sunshine Law authorizes redaction in certain circumstances, such as for privileged attorney-client communications. However, the Supreme Court explained that general authorization did not mean the Governor’s office redaction was proper, that the determination depends on other facts, and that Mr. Gross’ claim could proceed. Meanwhile, cities should consider explaining any redactions they make to documents they produce in response to a Sunshine request. In fact, it may be prudent to provide some explanation for all responsive information withheld from a Sunshine response if the explanation can be given without disclosing the withheld information.
Other aspects of the Gross v. Parson case also provide some guidance for cities in their Sunshine Law responses. Cities may consider explaining any decision they make to deny a request to waive fees for a Sunshine response. The Sunshine Law provides that:
Documents may be furnished without charge or at a reduced charge when the public governmental body determines that waiver or reduction of the fee is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the public governmental body and is not primarily in the commercial interest of the requester.
§ 610.026.1.(1) RSMo. Mr. Gross sued the Governor’s office for not responding to his request to waive fees under this portion of the Sunshine Law. The Governor’s office argued in the case that it was nevertheless within its discretion to deny the request. Mr. Gross did not appeal his loss of that claim and the Supreme Court therefore did not address it. As a result, this issue is unresolved. Even so, cities may consider whether they should explain a denial of such a request, even if it is simply to say that the city is denying a request to waive fees because it has not determined that a waiver or reduction of the fee is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the public governmental body and is not primarily in the commercial interest of the requester. Again, this is an open issue in the courts and such a response may not amount to compliance with the Sunshine Law. Cities may consider placing language in its Sunshine law policy to further clarify when such waiver may not be granted to provide added protection to the city when denying any request for a waiver of fees.
Finally, the Supreme Court made clear that it is not the burden of a requestor to show that they are entitled to a record, it is the burden of a city that closes a record to demonstrate that the Sunshine Law does not require disclosure. Accordingly, cities should heed the Supreme Court’s discussion of purposeful and knowing violations of the Sunshine Law as they provide substantial penalties.