Recent Developments Assessing Attorneys’ Fees under Missouri’s Sunshine LawJune 8, 2020
For years, it was unclear whether public bodies processing a request for documents under the Missouri Sunshine Law, Mo. Rev. Stat. §610.010 et seq., could charge for time spent by attorneys in determining whether any of the requested documents should be withheld or portions redacted. In White v. City of Ladue, 10SL-CC01184 (Sept. 28, 2012), Judge Barbara Wallace ruled that attorney review time is not encompassed in research time under the statute. Since then, the Attorney General opined otherwise. Though White was appealed, the appellate court did not review the trial court’s holding that charging for attorney review time was impermissible. 422. S.W.3d 439, 452 n. 10 (Mo.App. E.D.2013). However, two recent cases have added clarity on the issue, both ruling that such charges were inappropriate where they related to review by outside counsel.
The Missouri Sunshine Law imposes an affirmative duty on public governmental bodies to undertake the burden of separating exempt and nonexempt material in a public document and disclosing that document for examination and copying. Mo. Rev. Stat. § 610.024. For hard copy documents, the Missouri Sunshine Law limits copying fees to 10 cents per page, provides that an hourly fee for duplicating time shall not “exceed the average hourly rate of pay for the clerical staff of the public governmental body,” and allows a public governmental body to charge a fee for “research time required for fulfilling records requests.” Id.. § 610.024.1(1). For electronic records maintained on computer facilities and other media, a public governmental body may charge a fee that “shall include only the cost of copies [and] 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.” Id. § 610.024.1(2). Public governmental bodies often exercise their discretion to waive fees when the request is deemed to be in the public interest.
Some public governmental bodies have interpreted the statute to allow them to charge fees for attorney review—often outside counsel charging hundreds of dollars per hour—as a condition of assembling and producing the documents. This puts the transparency intended by the Missouri 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.
Case #1 – Cypress Media, LLC, d/b/a The Kansas City Star v. Clay County, Missouri, Case No. 19CY-CV05332 (Clay County Cir. Ct. March 23, 2020).
The Kansas City Star, through its reporter Steve Vockrodt, made a Missouri Sunshine Law request on Clay County for “any and all itemized billing statements/invoices” a law firm charged the County for legal services and expenses. Clay County, through its outside counsel, responded to the request by providing Vockrodt with an estimate of $4,200 for attorneys’ fees to review the invoices to separate and redact exempt material as provided by Missouri Sunshine Law. The Kansas City Star refused to pay the estimated attorneys’ fees and initiated a suit in Clay County Circuit Court alleging that Clay County violated the Missouri Sunshine Law by refusing to provide the public documents unless the requestor paid the estimated attorneys’ fee amount.
On March 23, 2020, Judge Roger Prokes found that the cost of reviewing and redacting public records for information protected by the attorney-client privilege or work product doctrine may not be assessed to someone making a Missouri Sunshine Law request. The court said that the law imposes an obligation on the public governmental body to separate the exempt information from the nonexempt information, but does not grant the public governmental body an ability to charge for this obligation. The public governmental body should bear the costs to review and research the public documents. Finally, the court found that even if Clay County could charge for attorney review time, Clay County violated the Missouri Sunshine Law by charging for the costs of a private, outside attorney to conduct the review. The court noted that Missouri Sunshine Law § 610.021.1(1) is unambiguous in its mandate that a public governmental body could charge only for review and research conducted by employees of the public governmental body, not outside attorneys.
Case #2 – Elad Gross v. Michael Parson, et al., Case No. WD83061 (Mo.App. W.D. May 26, 2020).
Elad Gross sent two requests for public records pursuant to the Missouri Sunshine Law to Governor Michael Parson’s office. In response, the Governor’s office stated that it found the applicable documents and estimated it would take 90.46 hours for “research/processing” at a rate of $40.00/hour to fulfill the requests. Gross refused to pay these charges and filed a lawsuit in Cole County Circuit Court alleging that Governor Parson’s office violated the Missouri Sunshine Law. The court granted the Governor’s motion for judgment on the pleadings. Gross appealed and argued that the circuit erred in entering its judgment because, among other things, the Governor’s office improperly charged attorney research fees as a requirement to access the public records.
The Missouri Court of Appeals for the Western District held that the Missouri Sunshine Law treats traditional-sized paper records in one fashion (Mo. Rev. Stat. § 610.021.1(1)) and documents maintained on computer or electronic media or non-document records such as photographs, videotape, audiotape, and larger documents like maps in a different fashion (Id. § 610.021.1(2)). The Court found that Gross requested documents covered by Subsection (1) and Subsection (2).
With respect to documents covered by Subsection (1), which allowed recovery for “research” time in addition to “search” time, the Court said that “research” was intended by the legislature to mean more than just time spent searching for the records. Looking to the dictionary, it found that “research” in the context used meant “studious inquiry or examination,” which would include attorney time. As such, Subsection (1) allowed the Governor’s office to assess attorney research time in reviewing documents to determine if any are protected from disclosure. However, because the statute required that the public governmental body limit its charges to the rate of the lowest-paid employee within the class of employees conducting the research, only inside counsel fees would be allowed, not those of non-employee or outside counsel.
The Court reached a different conclusion with respect to documents covered by Subsection (2), finding that it does not provide for “research” fees to be assessed to the requester. Even though a public governmental body might consider it required to have an attorney review certain electronic records before the records are sent out, the Court found that Subsection (2) does not allow a fee to be charged for this type of research. The Court found no authority in Subsection (2) for a public governmental body to assess research fees or attorney fees to a requester for records covered by Subsection (2). (In a concurring opinion on whether a requester could be charged for outside attorney review, Judge Ahuja would have held that Subsection (1) was not applicable because the Governor chose to produce the documents requested electronically and that as to Subsection (2), staff time would include staff attorneys, but not outside counsel.)
The Court remanded to the Circuit Court in order for it to determine which records are covered by Subsection (1) and Subsection (2) and to determine if the fees being assessed for those types of records are not at an excessive rate.
As an aside, but worthy of note, the Court held that the Governor’s office violated the statute in two other ways. First, the Court held that simply reciting that the request involved a “large number of records” as a reason for extending the three-business-day time for producing the requested records was insufficient to satisfy the “detailed explanation” required under Section 610.023(3) where more time is sought. The Court said, “The detailed explanations the Governor's Office provided on appeal may have been sufficient to constitute a ‘detailed explanation’…, but the statute requires that detailed explanation be provided to the party requesting the records in the response to the request.” Second, the Court held that the Governor’s office violated the statute by redacting certain documents produced, without reciting the specific statutory exemption supporting such redactions.
These two cases provide that for most Missouri Sunshine Law requests, attorneys’ fees should not be assessed. However, if attorneys’ fees are assessed, then such fees cannot be from an outside counsel. Instead, the public governmental body may charge only the rate of its lowest-paid attorney to do the research.
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