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Morning after arrests

Elad Gross, a constitutional lawyer, works on his phone outside the St. Louis jail on Wednesday, Oct. 4, 2017, as he waits to be let in to speak with some of the people who were arrested for blocking Interstate 64 the night before. A group of activists and lawyers waited outside the jail overnight working to get those arrested freed. Photo by David Carson, dcarson@post-dispatch.com

JEFFERSON CITY — A Cole County judge on Monday dismissed a lawsuit a Democrat filed last year that accused Gov. Mike Parson’s administration of breaking the Sunshine Law by charging thousands of dollars for a cache of records.

Elad Gross, a Democrat running for attorney general, sued Parson’s office in October after the administration said Gross would have to pay $3,618 before the office processed his 54-point open-records request. The records dealt with records relating to former Gov. Eric Greitens.

Cole County Circuit Judge Patricia Joyce said Monday Parson’s administration, under Missouri law, had the discretion to charge or waive fees.

State law says “documents may be furnished without charge or at a reduced charge when the public governmental body determines that waiver or reduction of the fee is in the public interest.”

“Under the plain language of the statute, the legislature clearly and unambiguously indicated the fee waiver or reduction ... is permissive and not mandatory,” Joyce wrote.

“Thus, the statute confers on the Governor’s Office the discretion to waive costs associated with the sunshine law when it determines the request is in the public interest.”

The bill Parson’s office charged was based on an estimated 90.46 hours of staff time to process the request, at $40 an hour.

Joyce said the Sunshine Law “plainly authorizes” research fees, and that Gross had provided “no factual allegations to support there is a violation of the law.”

The ruling also says the governor’s office could charge fees for “necessary attorney review time.”

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

Gross said the ruling could dramatically increase the costs of Sunshine requests.

Joyce also said Parson’s office did not violate the law when officials said they would need 120 business days to process the request, and said the fact that some redacted documents Gross received in response to a separate open-records request did not violate the law.

“Gross’ petition pleads no facts to support even the inference that the Governor’s Office engaged in any conduct to knowingly or purposefully violate the Sunshine Law,” Joyce said.

“Courts routinely strike or dismiss threadbare, speculative, and conjectural allegations of conspiracy.”

Gross said Monday he was debating whether to pay the $3,618 or appeal the case. He said if he were to pay the fee, the money would not come from his campaign account.

“I’m trying to keep the campaign separate from litigation,” he said.

“We applaud the court for quickly ruling that Mr. Gross’ lawsuit was ‘speculative’ and conjectural’ on its face,” said Steele Shippy, Parson’s spokesman, in a statement. “Sadly, large amounts of tax payer time and resources had to be spent on addressing Mr. Gross’ frivolous lawsuit. Mr. Gross now asking us to waive these fees is nothing more than Mr. Gross asking Missouri tax payers to foot the bill for his own personal request.

“We believe this to be an unacceptable use of tax payer time and money,” Shippy said. “We will, however, gladly provide all the public records he has requested under the sunshine law if he is willing to pay for the statutorily proscribed fees.”

Confide lawsuit

Also Monday, Cole County Circuit Judge Jon Beetem sided with the governor’s office in an open-records dispute that dates back to December 2017, when Greitens was still in office.

St. Louis attorney Mark Pedroli filed the lawsuit after revelations Greitens used Confide, a smartphone app that automatically destroys text messages. Most of Pedroli’s allegations, including that the governor’s office engaged in a conspiracy to violate the Sunshine Law, were dismissed.

Beetem said Confide does not create records that can be retained, and that Pedroli, a private citizen, could not seek to enforce records retention laws.

“While I think it’s intolerable for the state of Missouri, particularly the state legislature, to accept a burner app Sunshine law loophole for public officials, I’m pleased that Judge Beetem has not dismissed the entire lawsuit,” Pedroli said in an email.

Beetem scheduled another court date for July 23 to discuss Pedroli’s unresolved allegation, that the governor’s office failed to turn over certain mobile phone records.

Shippy said the governor’s office was pleased with the ruling.

Legislation that would forbid elected officials from downloading or using software that automatically deletes electronic messages did not make it to Parson’s desk this year.

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