It isn’t called “the Missouri Sunshine Law” for nothing.

Elad Gross (D) [2020 file photo].

Today the Missouri Supreme Court said [pdf]:

SUPREME COURT OF MISSOURI
en banc

ELAD GROSS, Appellant,
v.
MICHAEL PARSON, et al., Respondents.

No. SC98619
Opinion issued June 29, 2021

APPEAL FROM THE CIRCUIT COURT OF COLE COUNTY
The Honorable Patricia Joyce, Judge

Elad Gross appeals the circuit court’s judgment on the pleadings in favor of Governor Michael Parson and the custodian of records for the governor’s office, Michelle Hallford (collectively, “the Governor’s Office”). The underlying lawsuit filed by Mr. Gross involves two public records requests he made under the Sunshine Law, sections 610.010-.035.

Mr. Gross claims the circuit court erred in entering judgment on the pleadings because the Governor’s Office violated the Sunshine Law when it: required Mr. Gross to pre-pay an estimate of costs for his first request that included attorney-review time; arbitrarily refused to waive the fees associated with his first request; failed to explain its estimated delay in producing certain requested records; and impermissibly redacted [….] certain records. Mr. Gross claims some or all of these violations were knowing and purposeful. He also alleges the circuit court misapplied the law by assigning him – not the Governor’s office – the burden of demonstrating the redaction of portions of the records complied with the Sunshine Law.

For the reasons set forth below, the circuit court’s judgment is vacated, and the cause is remanded.
[….]

Facts in the case:

….In 2018, Mr. Gross sent the Governor’s Office two requests for public records pursuant to Missouri’s Sunshine Law. In August 2018, Mr. Gross first sought “[a]ny and all records, communications, documents, emails, reports, and other material” sent from or received by the Governor’s Office from 27 specific individuals or entities after January 9, 2017, i.e., between January 9, 2017, and the processing of Mr. Gross’s request. [….] Mr. Gross says his request was made as part of his investigation into the use of “dark money” by nonprofit organizations in Missouri. Mr. Gross ended his request by noting where responsive documents should be sent and requesting a waiver of all fees related to his request….

….On October 12, 2018, the Governor’s Office provided records in response to Mr. Gross’s second request. The responsive records were separated into two sets. “Set A” [….] contained 17 pages, two of which were partially redacted. “Set B” contained 40 pages, none of which were redacted. In addition to the responsive documents, the Governor’s Office informed Mr. Gross it decided to waive the fees for his second request. The Governor’s Office did not, however, provide a further response regarding Mr. Gross’s first request….

….After filing its answer, the Governor’s Office filed a motion for judgment on the pleadings, alleging Mr. Gross’s claims fail, as a matter of law. In particular, the Governor’s Office alleged Mr. Gross’s fee-waiver claim fails because the Governor’s Office has [….] discretion to waive fees; Mr. Gross’s excessive-fee claim fails because attorney review time is chargeable to a requester and $40 per hour is the hourly rate of the lowest-paid attorney who works for the Governor’s Office; Mr. Gross’s claim regarding the inadequate timeline provided by the Governor’s Office fails because the 120-day estimate is reasonable given the scope of Mr. Gross’s request; no improper redaction occurred because the Sunshine Law “authorizes the redaction of closed information, which includes attorney-client privileged communications”; and Mr. Gross’s allegations regarding “knowing” or “purposeful” violations of the Sunshine Law are based only on speculation. On July 8, 2019, the circuit court sustained the motion for judgment on the pleadings and entered judgment in favor of the Governor’s Office….

The gist of the appeal:

….On appeal, Mr. Gross claims the circuit court erred in sustaining the Governor’s Office’s motion for judgment on the pleadings. In 10 points relied on, Mr. Gross offers 10 different legal reasons to support his position. First, he claims the Governor’s Office violated the Sunshine Law when it required him to pre-pay an estimate of costs for his first request that included attorney review time. Second, Mr. Gross alleges the Governor’s Office violated the Sunshine Law when it failed to provide him with the earliest date upon which the records in his first request would be available. Third, Mr. Gross alleges the Governor’s Office violated the Sunshine Law when it failed to provide him with a detailed explanation of why it required at least 120 business days to produce documents in response to his first request. Fourth, Mr. Gross alleges he properly pleaded the Governor’s Office violated the Sunshine Law when it redacted certain records in response to his second request without explanation and without closing any records. Fifth, Mr. Gross alleges the circuit court erred in holding he had the burden of demonstrating the Governor’s Office did not comply with the Sunshine Law when, under the Sunshine Law, it is the Governor’s Office’s burden to demonstrate compliance with the law when redacting public records. In his sixth and seventh points, Mr. Gross alleges he adequately pleaded the Governor’s Office knowingly violated the Sunshine Law with respect to his first and second requests, respectively. In his eighth and ninth points, Mr. Gross alleges he adequately pleaded the [….] Governor’s Office purposely violated the Sunshine Law with respect to his first and second requests, respectively. Tenth, and lastly, Mr. Gross alleges the Governor’s Office abused its discretion in violation of the Missouri and United States constitutions by acting arbitrarily and capriciously in denying his request for a fee waiver or reduction associated with his first request….

Point by point:

….In his first point, Mr. Gross alleges the circuit court erred in granting judgment on the pleadings because the Governor’s Office violated the Sunshine Law when it required him to pre-pay an estimate of costs for his first request that included attorney review time. Mr. Gross avers the Sunshine Law does not authorize the Governor’s Office to charge him for attorney review time.

[….]

….Because the Sunshine Law does not authorize a public governmental body to charge a requester for attorney review time, the Governor’s Office was not entitled to judgment, as a matter of law, from the face of the pleadings. In this respect, the circuit court erred in sustaining the Governor’s Office’s motion for judgment on the pleadings….

….In his second claim, Mr. Gross alleges the Governor’s Office violated the Sunshine Law when it failed to provide him with the earliest date records in his first request would be available for inspection…

[….]

Because the pleadings show the Governor’s Office provided Mr. Gross with a time estimate of 120 business days from payment rather than the exact calendar date upon which Mr. Gross could inspect the requested records, the Governor’s Office was not entitled to judgment, as a matter of law, from the face of the pleadings. In this respect, the [….] circuit court erred in sustaining the Governor’s Office’s motion for judgment on the pleadings….

….In his third claim, Mr. Gross alleges the Governor’s Office violated section 610.023.3 when it advised Mr. Gross it would take at least 120 business days to produce documents responsive to his first request without providing him with a detailed explanation as to why it required at least 120 business days…

[….]

… Because section 610.023.3 requires a public governmental body to provide a “detailed explanation” when records are not immediately made available and the pleadings do not show the Governor’s Office did so, the Governor’s Office was not entitled to judgment, as a matter of law, from the face of the pleadings. With respect to Mr. Gross’s claim that the Governor’s Office violated the Sunshine Law by failing to provide a detailed explanation for the delay associated with his first request, the circuit court erred in sustaining the Governor’s Office’s motion for judgment on the pleadings….

….In his fourth claim, Mr. Gross alleges he properly pleaded the Governor’s Office violated the Sunshine Law when it redacted certain records in his second request without explanation…

[….]

….Mr. Gross’s pleading sufficiently alleged the Governor’s Office violated the law when it redacted records responsive to his second request. In this respect, the circuit court erred in sustaining the Governor’s Office’s motion for judgment on the pleadings….

….In his fifth claim, Mr. Gross alleges the circuit court misapplied the law when it concluded he had the burden of demonstrating the Governor’s Office did not comply with the Sunshine Law when it made the relevant redactions….

[….]

A requester does not have the burden to show noncompliance when an open record is redacted. The circuit court’s conclusion that Mr. Gross must have pleaded “more” than unexplained redaction is erroneous….

….In his sixth claim, Mr. Gross alleges the Governor’s Office knowingly violated the Sunshine Law with respect to his first records request and he sufficiently pleaded the Governor’s Office committed knowing violations….

[….]

…Mr. Gross has sufficiently alleged the Governor’s Office acted knowingly; therefore, the Governor’s Office was not entitled to judgment, as a matter of law, from the face of the pleadings. In consequence, the circuit court erred in sustaining the Governor’s Office’s motion for judgment on the pleadings as to this issue….

….In his seventh claim, Mr. Gross alleges the Governor’s Office knowingly violated the Sunshine Law with respect to his second sunshine request when it redacted two records it provided to him. Mr. Gross also claims he sufficiently pleaded that a knowing violation occurred. The Governor’s Office alleges its redactions were proper and Mr. Gross failed to plead otherwise sufficiently. The circuit court held Mr. Gross did not plead any facts “support[ing] even an inference that the Governor’s Office engaged in any conduct to knowingly . . . violate the Sunshine Law.” This conclusion was erroneous….

…In his eighth and ninth claims, Mr. Gross alleges the circuit court erred in sustaining the Governor’s Office’s motion for judgment on the pleadings with respect to Counts III and VII of his petition. Count III alleges the Governor’s Office purposely violated the Sunshine Law with respect to his first request, and Count VII alleges the Governor’s Office purposely violated the Sunshine Law with respect to his second request….

[….]

…These allegations sufficiently allege the Governor’s Office had an intent to violate the law. The Governor’s Office was not entitled to judgment, as a matter of law, on the face of the pleadings; therefore, the circuit court erred in sustaining the Governor’s Office’s motion for judgment on the pleadings in regard to Counts III and VII of Mr. Gross’s petition….

….In his tenth and final claim, Mr. Gross alleges the Governor’s Office violated “Missouri statutory and case law, the Missouri Constitution, and the United States Constitution” and “abused its discretion by acting arbitrarily and capriciously in denying [his] request for [the Governor’s Office] to waive or reduce fees associated with his first [….] Sunshine Request.” While his point relied on mentions “Missouri statutory and case law,”
Mr. Gross’s argument alleges only constitutional violations….

[….]

…Because Mr. Gross failed to raise this issue in the circuit court and never sought to amend his pleadings, his constitutional claims have not been preserved for appellate review….

Go. Read the whole thing.

Openness and transparency are supposed to be an essential element when it comes to government in Missouri. Not always in practice. There are a lot of people who should know better.

Governor Mike Parson (r) [2018 file photo].