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Recouping attorneys fees for review of sunshine request: yes and no

Updated: Jun 29, 2022

In Gross v. Parson, the Missouri Court of Appeals attempted to clarify several points regarding responses to Sunshine Requests.

Gross initially filed a Sunshine request with the Governor's Office for any and all records or communications the office had with 27 individuals and organizations Gross asserted were associated with "dark money" campaign contributions. Explaining that he believed the request was "in the public interest due to its law enforcement purpose," he requested that the Governor's Office waive all fees for locating and copying the records. Gross further provided that the Governor's Office should let him know in advance if the fees for responding would exceed $100.00. The Governor's Office informed Gross that they had identified more than 13,000 records which might be responsive, that it would take at least 120 business days to complete the request, that they would not waive the fees for the request, and that Gross would need to pay an estimated $3,618.40 in research and processing fees, which included attorney review time, before the Office would prepare the information. Gross filed a second request relating to plans or responses by or to the Governor's Office involving his first request. One set of records with 17 pages including 2 partially redacted and another set of 40 pages of un-redacted records were provided in response with the fee waived. Gross later filed suit against the Governor alleging that both responses violated the Missouri Sunshine Law. After the trial court dismissed the case, Gross appealed.

Gross argued in his appeal that the Governor's Office impermissibly sought to charge him fees for the Governor's attorneys to review the documents at issue. Splitting apart the two subsections of § 610.026.1 RSMo., the court concluded that permission to charge attorney review time depends in part on the how the requested record is stored since the "statute treats traditional sized paper records ... in one fashion and separately from those maintained on computer or electronic medium ..."

The court then moved to Subsection 1(1) and noted that prior to it's amendment in 2004 "research" was not included as an allowable fee under Subsection 1(1) and found because both "search" and "research" were provided, "research" had meant something more than locating the records. The court acknowledged that because certain records can be closed, "it is necessary to have an attorney review the records before they are disclosed" and agreed with the Governor's Office that "Subsection (1) allows for attorney research time to determine and classify documents as "open" or "closed" prior to disclosure. However, the court noted that, per the terms of Subsection 1(1), "when charging for attorney review [time], ...the lowest paid attorney" must be utilized.

By contrast, the court found that governmental bodies cannot charge attorney fees for research of records under Subsection 1(2) including electronic or digital, because that provision in the statute only permits charging fees for "providing access" to those records. The court held that the fees for "access" under Subsection 1(2) are limited to the time of staff required to copy the records at the staff's average hourly rate and the actual cost of copies.

Concerning violations related to the redactions of the second request, while the Governor's Office argued it made proper and limited redactions of closed material (recall only 2 pages of the 57 were partially redacted), the court held that simply asserting the redactions were improper satisfied the pleading requirement that the Sunshine Law required production. Therefore, Gross stated a claim that the trial court erred by granting dismissal. The court noted it is impossible to know whether the records were properly redacted since the records were never inspected.

There was some good news for cities in this case, however. The court quickly disregarded Gross's claim that the Governor's Office violated the Sunshine Law when it failed to provide "Gross with the earliest time the requested records would be available." The court stated, "It is unclear how the Governor's Office was supposed to notify Gross of an exact date the records would be available, when on its face, the request required the Governor's Office to provide notice regarding the cost ... before it began the process..." In this discussion, however, the court did note that "a general statement as to the large number of records that may be responsive to the request" might not be sufficient to explain the delay. Instead, a sufficient "detailed" explanation might include a further description of how the time delay was calculated. The court also easily rejected Gross's argument of a knowing violation because the Governor's Office did not waive fees for his first request since, "The Sunshine Law is clear that any waiver of fees is discretionary." Finally, the Court reaffirmed that a governmental body is allowed to require payment of estimated fees before producing records and does "not have a current obligation to produce the requested records" until such estimated cost is paid.

Ultimately, the Court reversed the dismissal of several of Gross's claims and remanded the case for further proceedings in the trial court. The full opinion can be found here. This case should be watched to see if it will be appealed to the Missouri Supreme Court.

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