State Supreme Court rules 6-0 attorney-review fees not permissible

By Jessica Shumaker
BridgeTower Media Newswires
 
ST. LOUIS, MO -- Public governmental bodies in Missouri are not permitted to charge Sunshine Law requesters for the time attorneys spend reviewing the request, a unanimous Missouri Supreme Court ruled June 29.

In a 6-0 decision, the court sided with St. Louis attorney Elad Gross in his lawsuit against Missouri Gov. Mike Parson. Judge Robin Ransom, who joined the court in June, did not take part in the decision.

Gross is a former Democratic candidate for attorney general who has sought to shine light on the role that campaign contributions from entities that don’t disclose their donors plays in Missouri politics.

In 2018, he sought records and communications exchanged between the governor’s office and a list of individuals and entities that he claimed were associated with so-called “dark money” contributions during former Gov. Eric Greitens’ term in office. The governor’s office responded that Gross first had to pay $3,618 for about 90 hours of work at a rate of $40 per hour, which was the hourly rate of the lowest-paid attorney on staff.

He sued the governor’s office and its custodian of records in Cole County Circuit Court, alleging violations of the Sunshine Law.

In 2019, Judge Patricia S. Joyce dismissed Gross’ petition. He first appealed to the Western District, which found partially in his favor. The Supreme Court later granted transfer.

The parties disputed whether the governor’s office could charge for attorney review. Parson argued that attorney review falls under either “research time” that is permitted in one provision of the Sunshine Law, or “staff time” as allowed in another provision.

Writing for the court, Judge Patricia Breckenridge said that the statute only allows a public governmental body to charge for research time “required for fulfilling public records requests.”

The court concluded that because the Sunshine Law obligates a public governmental body to separate exempt and non-exempt material without regard to any particular records request, attorney review time to determine if responsive documents contain privileged information is not research time required for fulfilling records requests. 

“It is not a public records request that requires the closing of records,” Breckenridge said. “A public records request may be fulfilled without any attorney review time.”

The court also shut the door on governmental bodies’ ability to charge for attorney review under the “staff time” provision, concluding that attorney review time “has no relation” to the provision, which has to do with providing access to public records maintained on computer facilities or physical media, like disks or videotapes.

The court vacated Joyce’s decision and remanded the case to proceed in the circuit court.

Gross said he was happy with the result.

He noted the ruling was more expansive than just the attorney-review issue — it also clarified obligations for governmental bodies to give the earliest time and date that materials will be available to requestors and discussed knowing and purposeful violations of the law.

Bernie Rhodes of Lathrop GPM in Kansas City, who filed an amicus brief in the case on behalf of the Kansas City Star and the St. Louis Post-Dispatch, also cheered the ruling.

“I am not exaggerating when I say that I have a stack of Sunshine Law requests on my desk in which the governor’s office has demanded attorney-review fees,” he said. “I’ve just been waiting for this decision to tell my clients to resubmit them.”

He said the decision further affirms that the Sunshine Law means what it says.

“It means that Missouri should finally live up to the promise of the Sunshine Law, that government works for the people and that the government’s documents should be available to the people and not hidden behind hundreds, often thousands, of dollars in attorneys’ fees demanded just to review the public’s records,” he said.