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Judge considering request to end Sunshine suit against Missouri governor

Judge considering request to end Sunshine suit against Missouri governor

May 22nd, 2019 by Bob Watson in Local News

Cole County Circuit Judge Patricia Joyce

Photo by News Tribune /News Tribune.

St. Louis lawyer Elad Gross wants the Cole County Circuit Court to order Gov. Mike Parson and his staff to respond to Gross' lengthy Sunshine Law requests, and to rule that the governor's office has violated provisions of that law.

But Jeremiah Morgan, the state's deputy attorney general for civil cases, told Circuit Judge Patricia Joyce on Tuesday morning that Gross' case should be dismissed, "as a matter of law."

The attorney general's office has asked the court to issue a "judgment on the pleadings" — that is, to rule there are no disputed facts, and the law is on the governor's side.

But, Gross told Joyce, "A judgment on the pleadings is not the way to go when you have factual disputes."

And, he argued, there are plenty of disagreements about the facts in the case.

Morgan told Joyce at the start of a 43-minute hearing: "The governor's office did exactly what the Sunshine Law required it to do."

When Gross asked for records of communications between Parson and former-Gov. Eric Greitens with 27 different individuals and organizations — including then-Attorney General Josh Hawley's office — Morgan said the governor's office "did a search and determined there were specifically 13,659 documents that may be potentially responsive to that request."

So Parson's staff told Gross it would take about 90.46 hours to review those documents and determine whether any involved attorney-client privilege information that Gross wasn't entitled to have.

Parson's office also told Gross it would take up to 120 days to produce all the records Gross wanted, and it would cost more than $3,600 to do the research to find those records.

"The statute is very clear that, when the public governmental body determines they can waive a (fee)," Morgan explained, "that provision gives it to the discretion of the governor's office."

Morgan said the estimated charge was based on a fee of $40 per hour — the hourly salary of the lowest-paid attorney in Parson's office.

Gross countered: "That rate that was charged to me is different (from) rates that are charged to others who made similar requests of the defendants under the Sunshine Law."

He said the St. Louis Post-Dispatch was charged $19 an hour for asking a similar question.

Morgan reminded Joyce: "The statute specifically authorizes research time required for fulfilling records requests may be charged at the actual cost — (and) I don't think anyone would suggest that we should commit to somebody who is not an attorney to review (records) for attorney-client privilege."

Given that some attorneys charge hundreds of dollars an hour for their services, Morgan said, the $40-per-hour charge "is reasonable."

However, Gross told Joyce: "The statute is very clear on what it authorizes and what it doesn't — and nowhere in the statute does it say that an attorney is authorized to charge money under the Sunshine Law for review time."

He added: "The statute says they are supposed to look for secretarial staff (or) administrative staff that would be the lowest cost for production of these documents."

Gross also said his request covered communications with 27 different groups, and only a few of the people included in his Sunshine Law request are attorneys.

Morgan said Gross complained about the estimated 120 business days to produce the information he'd asked for.

"But that is not true as a matter of law," Morgan told the judge. "It is, first and foremost, an estimate given; it is not necessarily actual time."

Gross countered the law requires the government to state a time and place "when the documents will be available; not when they may be available," and the governor's office didn't provide an exact time or place.

Morgan said Gross complained two paragraphs had been redacted, in a response the governor's office gave to Gross' second Sunshine Law request, when the law "clearly and explicitly provides that records can be closed."

Gross noted the Sunshine Law says when a government entity closes its records, "they are supposed to provide a reason for why those documents were closed."

In his case, that didn't happen, Gross said, and he alleges that is a violation of the Sunshine Law.

He urged Joyce to rule against the state's motion for judgment on the pleadings.

Morgan told Joyce: "We ask this court not only to put an end to this petition, but also the associated reasons or possible reasons it might be pursued."

She took the case under advisement, and gave no indication when she would issue a ruling.