Sunshine Law at Risk
Kansas City attorney, who specializes in violations of Missouri’s law aimed at governmental transparency, said public officials are waging war against the law’s intent, increasingly refusing to release documents despite the state statute.
Bernie Rhodes, who recently represented a non-profit genealogical group which won a case against a state agency for charging $1.5 million for records, said the preponderance of violations at all levels of government is no coincidence and trickles from the top.
The Missouri Department of Health and Senior Services (DHSS) had quoted the more than $1 million price tag despite the Sunshine Law’s stipulation that costs are to be minimal.
The recent case could have implications for a similar case in which a Parkville area man is suing the City of Parkville for refusing to release some requested documents in lieu of thousands of dollars in payment.
Rhodes, whose more than 40-year career as a media attorney has led him to represent hundreds of clients in Sunshine violation cases, said the precedent of withholding records comes from the country’s top official.
“Have you ever heard of ‘fake news?'” Rhodes asked during a recent telephone interview, referring to President Donald Trump’s battles with the press, which Rhodes believes have emboldened local governments to resist Sunshine compliance.
“They (government officials) forget the fact that they work for you and me,” Rhodes said of the tax dollars that fund government offices.
“There is clearly an overt and covert effort to avoid transparency in the state of Missouri,” said Rhodes, a partner with the firm Lathrop GPM of Kansas City. He added, “It’s clearly getting worse.”
However, a few recent cases may reflect a trend toward forcing compliance, Rhodes said. A Missouri circuit court judge recently ruled in favor of a California-based genealogical group after the Missouri Department of Health and Senior Services (DHSS) told the group it would charge the exorbitant fee to retrieve birth and death records dating back to 1910.
Rhodes represented the non-profit, Reclaim the Records, in the case. The group is comprised of genealogists, historians, researchers, journalists and open government advocates who make such data available to the public. In her judgement, Cole County Judge Patricia S. Joyce, assessed a $12,000 fine to the agency for deliberately delaying when the law clearly states that requests must be fulfilled within a few business days, according to a 54-page document detailing the case and the subsequent decision.
The decision also reflects the agency’s attempts to seek changes to the Missouri records law. Joyce also ordered DHSS to pay court costs in the case.
A SUNSHINE LAWSUIT AT PARKVILLE
Jason Maki, a Parkville area resident who leads Citizens for a Better Parkville, a group that has objected to the way the city is managed, has filed a civil suit against the City of Parkville for charging thousands of dollars for records he requested under the Sunshine Law.
While Maki already has paid the city and has received some documents, officials continue to hold other records “hostage” in lieu of several thousand dollars in fees.
Maki said the genealogy case provides an interesting example of a court decision in a Sunshine violation.
“It is encouraging to see yet another court enforce our state’s open records laws,” Maki said.
Parkville City Administrator Joe Parente responded to an email and said that, due to Maki’s lawsuit, he had no comment except the following: “.the lawsuit is the city’s opportunity to defend our compliance with the Sunshine Act,” he wrote.
In another recent case, Rhodes represented The Kansas City Star newspaper in a lawsuit against Clay County in which officials refused to release invoices showing how much the county (taxpayers) had paid in outside attorney fees. The newspaper won the ruling in March and the county was forced to release the documents.
Rhodes said violations are cyclical. Before Sunshine was adopted in 1973, many government officials routinely refused to release government records and denied the public access to meaningful debate by meeting behind closed doors (which is another safeguard of the law.) Sunshine originally “lacked teeth” or specifics and enforcement and was, therefore, virtually ineffective. But after more specifics were added, the law forced open meetings and records for a time.
For instance, one detail limits the time officials may take to respond to requests to a few days while another states that the “custodian of record” should be in charge of sending the information instead of a top-ranking official, who typically earns more per hour. When top paid officials sort records, government officials then pass the higher costs to those requesting documents.
Maki and the citizens’ group have complained that Parente, as a higher paid member of city staff, has violated that aspect of the law when he culled out documents released and held others in lieu of additional payments.
In the most recent case, when DHSS officials contacted the state’s former registrar, Garland Land, about the requests, he told officials to deny the request, “require them to take you to court” and use the delay to petition the legislature to change the law, according to court records.
Despite efforts, the agency was unable to get the law changed. Such cases are evidence that the “pendulum” has swung back to Sunshine violations, Rhodes said.
He also faulted Missouri Attorney General Eric Schmitt and his predecessor, Josh Hawley, (who was accused of using the office’s staff to run for a seat in the U.S. Senate), for taking no action against officials violating the law.
The attorney general’s office website states that Sunshine compliance is a major role of the office, but violations are not being investigated.
“They’re too busy suing China,” he said of Schmitt’s recent announcement that Missouri has joined other states in filing suit due to the belief that the coronavirus originally infested bats in China. “You can’t sue a sovereign state for internal affairs of the country,” Rhodes said. “It’s the most ridiculous thing in the world,” he said, adding that such suits will have no impact because countries have vastly different laws and political systems, preventing such suits.
Rhodes said Maki’s civil case is the perfect example of what happens when the attorney general’s office takes no action defending Sunshine and private citizens end up paying for the costs of litigation, “which people can’t afford.”
In the Parkville case, the attorney general’s office initially sent a letter to the city stating they were investigating the city’s lack of compliance due to a complaint by Maki’s attorneys. However, after several months, Maki announced he was filing the civil suit and the office formally withdrew its investigation.
Rhodes said recent cases provide examples of “an incredible tide of victories in Sunshine cases.”
He added, “We’re beginning to see the courts recognize the seriousness of the situation.”
Rhodes believes there is no alternative to individual lawsuits.
He said, “They just need to keep suing until governments realize it’s going to break their pocketbooks.”