Gross v. Parson

• Decision Date: 29 June 2021
• Docket Number: No. SC 98619,SC 98619
• Citation: 624 S.W.3d 877
• Court: Missouri Supreme Court
• Parties: Elad GROSS, Appellant, v. Michael PARSON, et al., Respondents.

624 S.W.3d 877

Elad GROSS, Appellant,

v.Michael PARSON, et al., Respondents.

No. SC 98619

Supreme Court of Missouri, en banc.

Opinion issued June 29, 2021

Elad Gross, of St. Louis, (314) 753-9033, represented himself.

The state was represented by Jeremiah J. Morgan and R. Jake Schmidt of the attorney general's office in Jefferson City (573) 751-3321.

Patricia Breckenridge, 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-.035.¹ 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.

Factual and Procedural Background

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.² 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, stating:

I request that the records responsive to my request be copied and sent to me at the following address: [Mr. Gross's address]

Where records are transmittable electronically, I request records responsive to my request be sent to [Mr. Gross's email] or by CD-ROM at the address above.

I request that all fees for locating and copying the records be waived. The information I obtain through this request will be used to determine whether specific organizations and individuals violated federal and Missouri laws governing political campaigns. This request is in the public interest due to its law enforcement purpose and because it will reveal whether specific nonprofit organizations are violating Missouri's consumer protection laws and whether legislation is needed to provide transparency in government for the people of Missouri.

Please let me know in advance of any search or copying if the fees will exceed $100.00.

Christopher K. Limbaugh, then-general counsel for the governor, responded to Mr. Gross's first request on August 23, 2018, stating, "We are in the process of gathering the records that are responsive to your request and anticipate that we will be able to provide a response or cost estimate (if applicable) for the records you have requested in approximately one month. We will contact you at that time."

On September 21, 2018, Mr. Limbaugh sent a follow-up response to Mr. Gross's first request, stating:

We have found 13,659 documents that may be responsive to your request. The estimated cost for providing these records is $3618.40 (please see enclosed invoice). Before we begin preparing the information, please forward to this office a check in that amount, directed to the attention of Michelle Hallford, Custodian of Records, and made out to "State of Missouri — Governor's Office[.]" Once we receive this amount we estimate that it will take at least 120 business days to complete this request. We will send the records to you on a disk.

The invoice attached to the follow-up communication provided Mr. Gross's request would take an estimated 90.46 hours of "research/processing" time at a rate of $40.00 per hour, amounting to $3,618.40 in fees.

Upon receipt of this invoice, Mr. Gross sent Ms. Hallford and Mr. Limbaugh a letter, asking the Governor's Office to reconsider waiving the fees related to his request, stating his request served a public, rather than a commercial, interest. Mr. Gross also requested that the Governor's Office provide a further explanation of the fees charged in the event it declined to waive fees. He informed the Governor's Office of section 610.026 and the requirement that a public governmental body produce copies using the employees that result in the lowest amount of charges and that charges for clerical work cannot exceed the average hourly rate of pay for clerical staff. Additionally, Mr. Gross informed the Governor's Office section 610.023.3 requires that, when a public governmental body fails to grant access to public records immediately, it must give a detailed explanation of the cause for further delay and the place and earliest time and date the records will be available.

On September 24, 2018, Mr. Gross sent a second Sunshine Law request to the Governor's Office, seeking:

Any and all records, communications, documents, emails, reports, and other material sent by or to Office of the Governor's staff, advisors, contractors, or other agents involving the Office of the Governor's response or plans to respond to the Sunshine Requests sent to the Office of the Governor by Elad Gross dated August 18, 2018.

Mr. Gross again asked the Governor's Office to waive fees related to his request, articulating the same reasons he set forth in his first request. On September 27, 2018, Mr. Limbaugh responded the Governor's Office would provide a response or a cost estimate within 10 days, adding, "We do not anticipate this will be a voluminous 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.

Rather than tender the estimated fees associated with his first request, Mr. Gross filed a petition in the circuit court on October 17, 2018. In his petition, Mr. Gross alleged the following with respect to his first request: the Governor's Office ignored his request for fee waiver, $40 per hour is an excessive charge under section 610.023.3, the Governor's Office failed to provide a detailed explanation of the cause for delay in producing the records, and the Governor's Office also failed to provide the earliest time and date the requested records would be available, as required by section 610.023.3 (Count I); the Governor's Office knowingly violated the Sunshine Law (Count II); the Governor's Office purposely violated the Sunshine Law (Count III); and the violations warranted injunctive relief (Count IV). With respect to his second sunshine request, Mr. Gross alleged the Governor's Office improperly redacted certain records (Count V); the Governor's Office knowingly violated the Sunshine Law (Count VI); the Governor's Office purposely violated the Sunshine Law (Count VII); and the violations warranted injunctive relief (Count VII).

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.

Mr. Gross appealed, and this Court granted transfer after an opinion by the court of appeals. Mo. Const. art. V, sec. 10.

Standard of Review

This Court reviews the circuit court's grant of judgment on the pleadings de novo. Woods v. Mo. Dep't of Corr. , 595 S.W.3d 504, 505 (Mo. banc 2020). In reviewing the circuit court's ruling, the Court must decide "whether the moving party is entitled to judgment as a matter of law on the face of the pleadings." Emerson Elec. Co. v. Marsh & McLennan Cos. , 362 S.W.3d 7, 12 (Mo. banc 2012) (quoting Eaton v. Mallinckrodt, Inc. , 224 S.W.3d 596, 599 (Mo. banc 2007) ). "The well-pleaded facts of the non-moving party's pleading are treated as admitted for purposes of the motion." Id. However, "[t]his Court will not ‘blindly accept the legal conclusions drawn by the pleaders from the facts.’ " Ocello v. Koster , 354 S.W.3d 187, 197 (Mo. banc 2011) (quoting Westcott v. City of Omaha , 901 F.2d 1486, 1488 (8th Cir. 1990) ). This Court will affirm the judgment if it is...