If you’ve ever asked a government body for records it didn’t want you to have, then you’ve likely experienced a version of Sunshine Law price gouging.
This is when the custodian of records for the city council, police department, university or other state agency sends you a note saying, yes, sure, you can have the records, as long as you pay, oh, say, $1.4 million.
That’s how much the state Department of Health and Senior Services wanted to charge Brooke Ganz in 2016 for historical birth and death records in the state. Ganz runs a genealogy nonprofit called “Reclaim the Records” that posts on a public website such public records from all over the country. Some states, like Missouri, decide to make her quest difficult.
So she sued.
I wrote about her lawsuit last year.
It’s a ridiculous response to a public records request, noted her attorney, Kansas City-based Sunshine Law expert Bernie Rhodes, a partner with the Lathrop Gage law firm.
He researched what it would take to produce the records, and it was literally “a couple of keystrokes,” he told me then.
“We have lost track of the perspective that the government is supposed to be working for us,” he said. “Too many public officials view everything they do as none of our business. It’s the exact opposite of what the Sunshine Law says.”
The Department of Health and Senior Services is run by Dr. Randall Williams, who was in the news recently because of testimony in another lawsuit, this one over the state’s handling of an investigation into Planned Parenthood, that Williams or one of his employees was keeping a spreadsheet of women’s menstrual cycles.
Williams is tracking women’s periods, but he won’t allow a citizen to access birth and death records the state has maintained for a century.
The trend in Sunshine Law cases in Missouri says that Ganz will eventually win her case.
So it was for St. Louis attorney Dan Kolde and his clients, the Beagle Freedom Project, last week.
The animal rights organization sued the University of Missouri in 2016 because of a similar response to a public records request. The Beagle Freedom Project had requested records related to the welfare of dogs and cats used for research at the university. The information is required to be produced and kept under federal law. Several other universities, including the University of Minnesota and Purdue University, had provided similar information for free.
But not the University of Missouri. It wanted a check for $82,222.
The animal rights organization sued.
On Friday, Boone County Circuit Judge Jeff Harris gave it a victory.
Harris determined that the university “knowingly” violated the Sunshine Law. He ordered the university to pay a $1,000 fine, pay the animal-rights organization’s attorneys’ fees, and produce the records for a reasonable fee.
It could have been worse. Missouri’s Sunshine Law doesn’t exactly have a lot of teeth.
But it’s a start.
“The cost estimate in this case was tantamount to a denial of the request,” Harris wrote.
Indeed, that’s generally the point.
When citizens, or reporters, or nonprofit organizations, seek documents that might end up being damaging to the governmental bodies, too often the reaction of the officials who run those bodies is to close the records, or to charge a fee that sends the requester on their way, unable to write a check to buy records that belong to the people.
The public body that Harris used to belong to — the Missouri House of Representatives — could try to do something about this, so that organizations and residents don’t have to resort to hiring lawyers to enforce the Sunshine Law.
But that’s not likely to happen anytime soon. The Missouri House is itself being sued for violating the Sunshine Law, after it approved a rule allowing members to keep certain records secret, in spite of voters’ recent change to the Missouri Constitution making the legislature subject to open records laws.
“The reality is that they are attempting to create a framework of exceptions to Open Records laws that will allow elected officials to conceal their communications to, and from, wealthy political donors, lobbyists seeking favor, dark money groups, and even large constituent corporations,” the lawsuit argues. It was filed by Clayton lawyer Mark Pedroli and his Sunshine and Government Accountability Project. “Neither federal nor state law supports this radical interpretation of the law.”
It’s good that Missouri has so many capable private attorneys willing to stand up to government bodies standing in the way of public accountability.
The $82,000 question, though, is this: Wouldn’t it be nice if the public bodies themselves took a stand in favor of the people’s right to know?