Court Tells Agency That Tried To Charge $1.5 Million For A Records Request It Now Owes The Requestor $12,000 In Fines

Failures

from the chug-disinfectant,-Missouri dept

It’s too bad it takes a lawsuit to free up supposedly “open” records. A few years ago, transparency group Reclaim the Records asked for some easy-to-compile birth and death data from the Missouri Department of Health and Senior Services and received this ridiculous response.

DHSS told [Brooke] Ganz her request would cost $1.4 million to gather the documents. Ganz hired an attorney, Bernie Rhodes of the Lathrop GPM law firm. Rhodes, of Kansas City, is a Sunshine Law expert. He did some research and figured out obtaining the records would literally take a few keystrokes at a computer. He protested the ridiculous charge — a common tactic in Missouri when public officials don’t want to release public documents. The state backed off and said the search would cost closer to $5,000.

When this drastically-reduced estimate was delivered, Reclaim the Records said it was still too high. So, the state just decided it wasn’t going to release the records at all.

The Cole County Court has sided with Reclaim the Records. The state will have to produce the records and for even less than the $5,000 it quoted before deciding it wasn’t going to release anything. The decision [PDF] details the government’s dishonest dealings during this case, making it clear the DHSS did everything it could to avoid complying with the state’s Sunshine Law.

The first couple of communications from the DHSS quoted an hourly rate of $20.85. The next response — sent after state officials spent a few days “obtaining information about Reclaim the Records” — suddenly increased the hourly rate to $42.50/hour, raising the entire estimate to nearly $1.5 million.

This estimate was drastically reduced when Reclaim’s lawyer pointed out the search could be performed easily, pulling birth/death data from the state’s database a year at a time, rather than the state’s proposed day-by-day search through 40+ years of data.

The ruling provides more insight on the DHSS’s obfuscation — a coordinated effort by the government to withhold these records permanently.

On July 21, 2016—while Mr. Rhodes and Ms. Loethen were corresponding about search methodologies that would comply with the Sunshine Law—Dr. Wambuguh spoke with Garland Land, the former State Registrar, about Ms. Ganz’s requests.

Later the same day, Mr. Land wrote Dr. Wambuguh and told her that DHSS should deny Ms. Ganz’s requests, and “require them to take you to court,” and to use the delay caused by the lawsuit to get the Legislature to change the law.

The court’s opinion includes a screenshot of an email from Garland Land detailing the state’s attempt to wait this out to see if it could get the law amended before Reclaim could sue the records out of the state’s hands.

I would not honor the request. I would require them to take you to court and then bring in national genealogical and vital records experts to testify why making indexes is not good public policy. By delaying this you might file a regulation or get the Legislature to clarify the intent of the law.

That’s what the DHSS did. It went to work trying to have the law changed, rather than simply comply with a (simple) public records request.

As stated in Mr. Ward’s e-mail, DHSS did in fact put forward a request to the Missouri Legislature to remove the provision from Missouri law providing that birth and death listings are available upon request.

Specifically, DHSS lobbied to have the Missouri Legislature remove the provision in Section 193.245 that provides that birth and death listings are available upon request.

The court finds the DHSS is obligated to produce these records. The law clearly states the DHSS “may disclose” the information Reclaim the Records requested. Nothing forbids the production of these records. Not only that, but it will have to do so for even less than the $5,000 it last quoted. The court says the allowable charges are only $2,557.30 — a total it arrived at after stripping the cruft from the DHSS’s quoted hourly rate of pay, decreasing it from $42.50/hour to $20.65/hour. This final total is “three-tenths of one percent of DHSS’ original $1.49 million estimate.”

The court doesn’t care for the government’s actions at all.

This secret plan represents an utter disdain for “the public policy of this state that … records … of public governmental bodies be open to the public unless otherwise provided by law.” Mo. Rev. Stat. § 610.011.1. Governmental bodies are not allowed to deny requests and then seek a law closing them; instead, they may only close records that are closed by existing law.

It is also important to consider the chronology of events—specifically, the fact DHSS’ denial came only after Ms. Ganz’s counsel had debunked the original $1.49 million demands for fees, which was clearly intended to be a back-door denial of Ms. Ganz’s requests. And when DHSS refigured its cost estimate using information supplied by Ms. Ganz’s counsel, it arrived at an estimate of approximately $5,000—still significantly higher than the allowable charges, but in a range that Ms. Ganz might consider paying.

Faced with this reality, DHSS had to scramble to find a way to prevent the disclosure. It found that way when Mr. Land provided a literal roadmap to achieve DHSS’ illicit goal: deny the request, make Ms. Ganz sue, and then use the delay caused by the resulting lawsuit to go to the Missouri Legislature and try to get them to change the law to close otherwise open records. It is hard to imagine a more purposeful plot.

For these willful violations of the state’s Sunshine Law, DHSS has been hit with $12,000 in fines, payable to Reclaim the Records. It is also now liable for Reclaim’s legal fees, which are yet to be determined. Unfortunately, these payments will come out of taxpayers’ pockets, which kind of limits the deterrent effect. But it’s clear the government never had any intention of following the law. Worse, it tried to have the law changed to align with its desire for opacity — an amendment that would have produced zero net benefit for residents of the state. It’s a pretty bold move to charge constituents for the privilege of having less access to public records. Fortunately, none of this worked out for the DHSS.

Filed Under: bernie rhodes, brooke ganz, foia, missouri, missouri department of health, sunshine, transparency
Companies: reclaim the records