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Law & Order

Missouri On Hook For Thousands In Legal Fees After Court Finds State Violated Sunshine Law

Brooke Schreier (far left), founder and president of Reclaim the Records, at a conference last year.
Brooke Schreier Ganz
/
KCUR
Brooke Schreier (far left), founder and president of Reclaim the Records, at a conference last year.

Missouri has been ordered to cough up nearly $138,000 in legal fees and expenses after a judge ruled last year that it “knowingly and purposefully” violated the state Sunshine Law.

The Missouri Court of Appeals upheld a Cole County judge’s finding that the state ran afoul of the law when the Missouri Department of Health and Human Services sought to charge a genealogy research group nearly $1.5 million for state birth and death records.

Reclaim the Records, a California-based nonprofit whose mission is to make public records available online for genealogical and historical researchers, made the request in early 2016, seeking Missouri birth and death indexes since 1910. After more than four months, the Department of Health and Senior Services responded, saying it would cost more than $1.49 million to retrieve the records from its database.

After Reclaim the Records’ attorney pointed out the records could be retrieved through simple data-range searches, the department revised its estimate down to $5,174, a decrease of more than 99%.

Even so, Reclaim the Records and its founder, Brooke Schreier Ganz, sued, claiming that even the $5,174 fee was excessive.

Nearly a year ago Cole County Circuit Judge Patricia S. Joyce agreed, finding Missouri had violated the Sunshine Law on four separate occasions. She ordered it to pay $12,000 in penalties as well as Reclaim the Records’ legal fees and expenses.

In her decision, Joyce ruled the records were indisputably public records that fell under no exception to the Sunshine Law.

In upholding her decision, the Missouri Court of Appeals found that the attorneys’ fees sought by Reclaim the Records were not unreasonable.

“One of the reasons the (attorneys’ fees) were that high was specifically due to the Missouri Attorney General’s Office having a revolving door of assistant attorneys general – I believe they went through seven or eight during the course of a four-year lawsuit,” Ganz said.

“ … We had to wait for them to read and review things, and all the time that was accruing money on our side and more time. And the state was continuing to drag its feet. I don’t how much of that was because they had antipathy to our case or if it was because they were just very poorly managed.”

And because Reclaim the Records incurred additional legal fees after the state appealed, the appeals court sent the matter back to the trial court to determine those fees as well. That could add several thousand more dollars to the state’s ultimate tab.

“It’s the case that keeps on giving,” Reclaim the Records’ attorney, Bernie Rhodes, said. “Even after the court found that DHSS purposely violated the Sunshine Law, the state continues to press forward to avoid its obligations under the Missouri Sunshine Law. Enough is enough.”

A spokesman for the Missouri Attorney General’s Office said the office would have no comment on the appeals court's decision.

The case has ended up being consequential not just because it has made a trove of records available to genealogy and history researchers. It will also enable medical researchers, epidemiologists, journalists and others to compare death records in 2020, the year the COVID-19 pandemic took hold in the United States, with those of preceding years.

“It is that much more important that everyone knows maybe not the details of people’s lives and deaths, but at least the basic names and counts of people who died in the state,” Ganz said.

Ganz said Missouri has now turned over most of the records it requested, covering 1922 through 2015 for births and 1968 through 2015 for deaths. She said Reclaim the Records expects to receive additional records covering births from 1910 through 1920 and deaths for the last five years, all of which it intends to post on its website. The organization makes the data available free of charge.

When it filed its lawsuit in 2016, Ganz said, Reclaim the Records was just a small genealogical organization trying to obtain some basic records, “something that other states publish proactively all the time.”

“There should never have been this case in the first place,” Ganz said. “Except that they kept wanting to ignore what their own law already very clearly stated.”

Copyright 2021 KCUR 89.3. To see more, visit KCUR 89.3.

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