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

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.

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

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  1. icon
    That One Guy (profile), 27 Apr 2020 @ 7:42pm

    Bad or worse...

    I'm not sure which is the worse possible explanation honestly, that there is something in that data that the DHSS really didn't want coming out, to the point that they were willing to go above and beyond in trying to hide it, or that they are so utterly petty and spiteful that they are willing to drag a simple request out for ages in the hope that they can get the law changed so they don't have to comply with it simply because they can(or at least thought they could).

    Whatever the case while it would have been nice for those responsible for such corrupt behavior to be on the hook personally for the fines barring that it's nice to see a court not willing to give such abhorrent and anti-public actions a pass and actually hand out a penalty.

    reply to this | link to this | view in thread ]

  2. identicon
    Anonymous Coward, 27 Apr 2020 @ 8:59pm

    Is this why governments get so mad at Google, because they make looking for information cheaper - or they make it such that agencies can't plunder the citizenry?

    reply to this | link to this | view in thread ]

  3. identicon
    Anonymous Coward, 27 Apr 2020 @ 9:40pm

    what was motive?

    reply to this | link to this | view in thread ]

  4. identicon
    Anonymous Coward, 27 Apr 2020 @ 10:02pm

    Knowledge is power. Petty tyrants (the kind of people who gravitate towards information-hoarding bureaucracies) are not only inclined, but have been trained how to say "no". Saying "yes" makes for more work....

    It is not, of course, just governments. Business hierarchies strongly tend to get into the same operating mode.

    Organized crime ... hates a "rat" more than a bureaucracy hates a whistleblower.

    Not just anyone can resist the organizational tendancy--it takes honesty, and a willingness to face the full wrath of the organization. People who "would like to be honest so long as it doesn't hurt themselves" ... go with the flow.

    reply to this | link to this | view in thread ]

  5. identicon
    Anonymous Coward, 27 Apr 2020 @ 11:47pm

    Sounds to me that Garland Land and Loise Wambuguh should bear some personal liability for this, since the entire scheme was their idea. Of course they won't... but it would be nice to have the actual bad actors held responsible.

    reply to this | link to this | view in thread ]

  6. icon
    Bill Poser (profile), 28 Apr 2020 @ 12:46am

    making indexes is bad?

    I'm curious why it is allegedly bad public policy to make indexes of birth and death records. Anyone know?

    reply to this | link to this | view in thread ]

  7. icon
    Khym Chanur (profile), 28 Apr 2020 @ 3:21am

    It was probably about protecting revenue

    According to this page the government was charging researchers for access to this information. If that information all came out due to a public records request then they'd lose the revenue stream.

    reply to this | link to this | view in thread ]

  8. identicon
    Anonymous Coward, 28 Apr 2020 @ 3:32am

    Re: making indexes is bad?

    Death records an be highly revealing of social problems, such as short average life span for minorities.

    reply to this | link to this | view in thread ]

  9. identicon
    Anonymous Coward, 28 Apr 2020 @ 3:53am

    DHHS would have gotten away with it it wasn't for the pesky court.

    reply to this | link to this | view in thread ]

  10. identicon
    Anonymous Coward, 28 Apr 2020 @ 3:54am


    DHSS not DHHS.

    reply to this | link to this | view in thread ]

  11. icon
    That One Guy (profile), 28 Apr 2020 @ 6:38am

    Re: It was probably about protecting revenue

    Corruption it is, thanks for clearing that up.

    reply to this | link to this | view in thread ]

  12. identicon
    dr evil, 28 Apr 2020 @ 9:16am

    another way to look at it

    i did a records request once on a police department, and they claimed they found no responsive documents. I waited a short time, then through another ID I made a request for the records that showed how they did that records request. It too came up blank (meaning they didn't bother doing the first search). so we went to court, and they had to hand everything over (yes, they had it all by then) plus the investigation for fraudulent time sheets connected to the case was extra frosting. ...
    for this case, I would now request all emails, phone call logs, letter, travel info, etc regarding this particular records request and the lawsuit. it would be fun to see the emails that say 'f this guy, over charge him, do this do that' .. they could say there is no information, which would get them even deeper into the whole. don't forget to get their lawyers records.

    reply to this | link to this | view in thread ]

  13. identicon
    Glenn, 28 Apr 2020 @ 6:17pm

    We The People deserve to have to pay for the utter corruption of public, govt. officials elected to office and/or appointed by our elected representatives.

    Vote better next time.

    reply to this | link to this | view in thread ]

  14. identicon
    Anonymous Coward, 1 May 2020 @ 11:55am

    Corporate Apologia

    The amount of groveling to corporations, if not outright shilling, by users of this site is astounding.

    Which 'governments get so mad at Google'? Do you mean a handful of US legislators feebly and ineffectually kinda-sorta mildly suggesting something should be done to break up this censorious, monopolistic Orwellian monstrosity?

    The federal government ought to utterly crush Google, Facebook, Twitter, and Amazon. It should do this for trust-busting purposes; the side benefit being restoring the spirit of free speech and removing the anti-American thoughtpolicing CEOs, advertisers, and special interests from controlling the narrative.

    Imagine: YouTube could be good again!

    reply to this | link to this | view in thread ]

  15. icon
    Tanner Andrews (profile), 9 May 2020 @ 2:41pm

    New Standards in Govt

    Sounds like the Missouri Dept of Health and Senior Services wanted to put the Clewiston Police Dept to shame. And they succeeded.

    Clewiston only charged $4000, as I recall. See Carden v. Chief of Police, Clewiston Police Dep't, 696 So.2d 772 (2DCA 1996). On remand, they were going to have to try to explain that charge.

    Background: Clewiston is a town on the south side of the big lake, mostly known for sugar processing. Indeed, the ``welcome'' signs tell you that it is the sweetest place on earth. I have personally never had any problem with the cops there.

    reply to this | link to this | view in thread ]

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