In a 2-1 ruling handed down on May 26, 2020, the Court of Appeals for the Western District of Missouri held that public governmental bodies cannot assess the cost of attorney-review time as “staff time” when reviewing and responding to records requests under the Missouri Sunshine Law.
In 2018, Attorney General candidate Elad Gross submitted a records request to Missouri Governor Mike Parson’s Office, seeking “[a]ny and all records, communications, documents, emails reports, and other material” sent from or received by the Governor’s Office from twenty-seven named individuals or entities, which Gross claimed were associated with “dark money” contributions during the term of previous Governor Eric Greitens. The Governor’s Office responded that it had found 13,659 documents that may be responsive to Gross’ request and provided Gross with an invoice of $3,618.40 for researching and processing the request. The invoice estimated that “research/processing” would take 90.46 hours charged at the rate of $40.00 per hour. On October 17, 2018, Gross filed an eight count petition in the Circuit Court of Cole Count against Gov. Parson and the custodian of records for the Governor’s Office alleging that they had violated the Sunshine Law.
On appeal, Gross argued that the Circuit Court erred in entering judgment on the pleadings because the Governor’s Office impermissibly charged attorneys’ research fees for Mr. Gross’ records request.
Writing for the majority, Judge Gary D. Witt noted that the relevant statute governing the fees a public governmental body is authorized to charge when processing Sunshine Law requests is Section 610.026.1, RSMo. That statute contains two subsections which outline fees for different types of records. Judge Witt found that because Gross requested both physical documents and electronic records, Gross’ request was potentially governed by Subsection (1) and Subsection (2) of Section 610.026.1, RSMo. Subsection (1) of Section 610.026.1, RSMo., governs requests for documents maintained as paper records, even if those records are capable of being transmitted electronically, and allows a public governmental body to assess charges for “search, research, and duplication time.” Subsection (2) of Section 610.026.1, RSMo., on the other hand, governs requests for electronically stored records. Although the Sunshine Law allows fees for “providing access to public records maintained on computer facilities[,]” such fees are limited to “include only the cost of copies, 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 Court of Appeals rejected the contention that a governmental body should be able to charge attorney review fees under Subsection (2) of Section 610.026.1, RSMo. The Court ruled that while a governmental body may believe it is required to have an attorney review certain electronic records before they are provided to a member of the public under the Sunshine Law, Subsection (2) makes no provision for such “research” fees to be assessed to the person or entity requesting the documents. “Instead, it provides for staff time for activities directly related to providing access to electronic records…” The Court of Appeals concluded, “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).”
Under the rules governing appellate procedure, the Defendants/Respondents may seek a rehearing by the Court of Appeals and/or transfer of the case to the Missouri Supreme Court. The case is Gross v. Parson et al., WD83061.