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Can Missouri charge attorneys fees for public records? Transparency hawks, state disagree

Can Missouri charge attorneys fees for public records? Transparency hawks, state disagree

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In 2008, the Post-Dispatch filed an Sunshine Law request for records from Missouri Gov. Matt Blunt's office and, though it took some work, this is what happened. Usually the result is not so dramatic. 

JEFFERSON CITY — The Missouri attorney general’s office and a group of attorneys who specialize in government transparency cases are in disagreement over the state’s ability to charge fees for the time officials spend redacting public records.

Those fees can drive up the cost of open-records requests by thousands of dollars, and advocates argue there is no authorization for such charges under the Sunshine Law.

The Missouri Court of Appeals, Western District, has taken up the issue. Elad Gross, a Democrat running for attorney general, is challenging a $3,618 bill he received from the governor’s office last year after requesting a cache of records. No hearing was scheduled as of Tuesday.

The office of Attorney General Eric Schmitt, a Republican, is defending Gov. Mike Parson’s administration in the case, putting the chief law enforcement officer in an awkward position: the attorney general is tasked with enforcing the Sunshine Law as well as defending state officials.

Transparency advocates — including the Missouri Press Association, the Freedom Center of Missouri, the ACLU of Missouri, and the Sunshine and Government Accountability Project — filed briefs this month opposing the government’s ability to charge attorneys fees for records.

Parson’s office based the bill it charged Gross on an estimated 90 hours of staff processing time at $40 per hour.

“I think they’re wrong,” Jean Maneke, legal counsel for the Missouri Press Association, said of the state’s interpretation of the law. She said in a court brief that steep bills for Sunshine requests discourage use of the transparency tool.

“When the public governmental body demands payment of a significant cost for the access, it is the equivalent of denying access to the public,” Maneke said.

She said state law requires public governmental bodies to separate closed records from open records at the time they are retained.

“It’s the public body’s duty to make that separation,” Maneke said, adding the state had already identified 13,000 records in Gross’ request, meaning the state couldn’t make the case that the invoice was based on “search time” or “research time,” she said.

“There’s nothing that says they can charge the public for it,” she said. “It’s definitely not ‘search time’ because they have already located the records at that point.”

The attorney general’s office disagrees, contending the charges fit under a provision in state law that allows fees for “research time required for fulfilling records requests.”

In July, Cole County Circuit Judge Patricia Joyce sided with the state.

“Research, within the plain meaning of the word, includes efforts by an attorney to review documents for responsiveness, privilege, and work product,” she said in her ruling.

Chris Nuelle, Schmitt’s spokesman, noted that the office of Auditor Nicole Galloway, a Democrat running against Parson next year, said in a 2016 news release that “the Sunshine Law does allow governments to charge fees for research and copying records.”

Galloway’s office did not respond Tuesday to a request for comment.

David Roland, director of litigation at the Freedom Center of Missouri, a right-leaning government transparency group, said he disagreed with the attorney general’s interpretation.

“A plain reading of the Sunshine Law indicates that while fees can be charged for research, reviewing” records that have “been located to determine whether they can be redacted or withheld — I don’t think that that is authorized within the scope of research,” he said.

In western Missouri, Clay County outsourced Sunshine request processing responsibilities to the Spencer Fane law firm. A Kansas City Star reporter asked how much the law firm was charging the county and requested copies of billing records.

According to the newspaper, the law firm said the Star would have to pay $4,200 before the law firm would process the request. The newspaper sued in May, accusing the county of knowingly and purposefully violating the Sunshine Law.

A survey of state governmental bodies found that approaches vary.

The attorney general’s office last implemented and updated its policy in 2014 under then-Democratic Attorney General Chris Koster, Nuelle said. The policy allows the office to charge $40 per hour for “activities performed by attorneys.”

Despite this, Schmitt, since taking office almost one year ago, has not charged any fees associated with a Sunshine request, Nuelle said. Nuelle said Schmitt’s predecessor, U.S. Sen. Josh Hawley, also never charged any fees; he said the Democrats that had controlled the office for 25 years prior to 2017 occasionally charged for requests.

“Attorney General Schmitt believes strongly in an open and transparent government — citizens and journalists should not at all be discouraged from continuing to file Sunshine Law requests with our office,” he said.

The Department of Health and Senior Services says it began charging for attorneys fees on April 1.

The “department, like many other departments, began charging for attorney research time on April 1 of this year,” said Lisa Cox, spokeswoman for the agency.

Cox said there was no statewide memo or directive allowing the change, and did not identify any other departments that had changed policies.

“Over the past several years, the amount of attorney time required to address Sunshine Law requests at DHSS has significantly increased, which has impacted their ability to provide counsel to the department programs,” she said.

“Anytime a request requires attorney review time, the fees are charged, unless a waiver of fees is given,” she said, adding that the department waives such fees for media outlets under a provision of the law that allows fee waivers for information in the public interest.

The Department of Economic Development does charge attorneys fees for the time it spends redacting records.

Holly Koofer-Thompson, spokeswoman for the agency, pointed to a provision in state law that deals with closure of tax credit records.

The law says that when parts of a document are closed, and parts are open, information that is open must be turned over. The subsequent redaction process takes time.

“Staff time required for such redaction shall constitute an activity for which a fee can be collected,” the law, which applies specifically to tax credit records, says.

That department’s fee policy, in effect since 2008, allows officials to charge “actual costs” for “research time” associated with records requests, Koofer-Thompson said.

The Department of Agriculture does not charge attorneys fees.

“We don’t charge attorney fees, but we do charge for one staff member’s time if the total estimate exceeds $20,” said Sami Jo Freeman, spokeswoman for the agency.

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