Missouri Supreme Court Holds that Public Governmental Bodies May Not Charge for Attorney Review TimeJune 30, 2021
On June 29, 2021, the Missouri Supreme Court provided clarity on whether public governmental bodies processing a request for documents under the Missouri Sunshine Law can charge for time spent by attorneys in determining whether any of the requested documents should be withheld or portions redacted. In Elad Gross v. Michael Parson, et al., the Court held that “the Sunshine Law does not authorize a public governmental body to charge a requester for attorney review time.” The holding provides clarification that public governmental bodies cannot put Sunshine Law requests out of reach of requesters by charging fees for attorney review—often outside counsel charging hundreds of dollars per hour—as a condition of assembling and producing the documents.
In 2018, Elad Gross filed two requests under the Sunshine Law regarding records from the Office of the Governor. In response to Gross’s first request, the Governor’s Office provided an estimated time of 90.46 hours of “research/processing” time at $40/hour for the records request. The total fee was $3,618.40, an amount exceeding what Gross would pay. The Governor’s Office also noted the request would take at least 120 business days but provided no explanation for the time delay. Gross sent in a request for a fee waiver or, alternatively, an explanation of the high fee. The Governor’s Office explained that $40/hour was the lowest fee for a staff attorney, which the Governor’s Office used to review Gross’s requested records for privileged material. Gross also filed a second request for records pertaining to his first requests. In response, the Governor’s Office provided two sets of documents, with several documents redacted.
Gross filed a lawsuit alleging that the Governor’s Office violated the Sunshine Law. Among the numerous claims, Gross alleged that the Governor’s Office charged excessive fees in violation of Mo. Rev. Stat. § 610.026 (requiring public governmental bodies to produce copies at a rate “not to exceed the average hourly rate of pay for clerical staff of the public governmental body”). Furthermore, Gross alleged that the Governor’s Office failed to provide a detailed explanation of the cause for further delay in regards to the first request, a violation of Mo. Rev. Stat. § 610.023.3. Gross also alleged improper redaction of the records regarding the second request due to lack of explanation for redaction. The circuit court sustained the motion for judgment on the pleadings by the Governor’s Office and entered judgment for the Governor’s Office. Gross appealed to the Missouri Court of Appeals and then subsequently appealed to the Missouri Supreme Court. The Missouri Supreme Court held that the circuit court erred in sustaining the Governor’s Office’s motion for judgment on the pleadings and remanded the case.
The Attorney’s Fees Holding
The Court held that “section 610.026.1(2) does not authorize the Governor’s Office to charge Mr. Gross for time its staff attorneys spend reviewing responsive documents for privileged information.” In their brief, the Governor’s Office argued that attorney review time is a subset of “research time” or “staff time,” both of which are authorized in Section 610.026.1. The Court rejected that argument, stating that “attorney review time to determine whether responsive documents contain privileged information is not ‘[r]esearch time required for fulfilling records requests’” (emphasis in original). Section 610.024 requires public governmental bodies to separate exempt and non-exempt materials for disclosure prior to any particular records request. Records with exempt material should be closed prior to any records request. Because statute requires exempt and non-exempt review to occur prior to any particular records request, the Court said the Governor’s Office could not charge Gross for attorney review time as research time for fulfilling records requests.
The Court also rejected the Governor’s Office’s second argument that attorney review time was a subset of “staff time” authorized under Section 610.026.1(2). Under the statute, chargeable staff time refers 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” and making “paper copies larger than nine by fourteen inches.” Attorney review time is not encompassed by the statute definition of staff time. Thus, the Court said, the Governor’s Office cannot charge Gross for attorney review time as staff time.
Clear and Detailed Explanation when Additional Response Time Is Needed
Under Section 610.023.3, the Governor’s Office is required to “give a detailed explanation of the cause for further delay and the place and earliest time and date that the record will be available for inspection.” Gross alleged violation of this statute because the Governor’s Office failed to provide a detailed explanation regarding the estimate of 120 business days for records disclosure, which is required if the records are not disclosed within three business days of the request. While the Governor’s Office gave a detailed explanation to the Court upon appeal, this explanation was not given to Gross at the time of notified delay. The Court held that the Governor’s Office was required to give this detailed explanation to Gross when they communicated the delay and time estimate.
Justification for Redactions
Gross also alleged violation of the Sunshine Law when the Governor’s Office redacted records regarding his second request without explanation. The Governor’s Office did not communicate to Gross that any of the requested records were closed due to attorney-client privilege or work product. The Court recognized that the Sunshine Law does allow the Governor’s Office to redact information in certain circumstances. However, the Court rejected the Governor’s Office’s argument that the privileged nature of the records was clear to Gross because he requested information involving multiple attorneys. Many communications with attorneys are not privileged. The Court found that redaction of information just because attorneys are involved in the communication is not always proper. Rather, it held that this was an issue that required further factual support showing that the information was, in fact, privileged and exempt under the statute. Accordingly, the Court vacated the circuit court’s judgment and remanded that issue for further analysis by the trial court.
The holding in Gross v. Parson is consistent with the liberal interpretation to be given requests under the Sunshine Law. Public governmental bodies may not put Sunshine Law requests out of reach of requesters by charging fees for attorney review as a condition of assembling and producing the documents. Doing so puts the transparency intended by the Sunshine Law out of reach for the average citizen and in some cases even deters requesters that could better afford it, including media entities acting in the public interest.
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Special thanks to Tiffany M. Middlemas for her contributions to this article.