BY: RUDI KELLER
Missouri Independent
The Attorney General’s Office did not violate the Missouri Sunshine Law when it refused to turn over records showing how it fulfilled a request, the Western District Court of Appeals ruled Tuesday.
In a split decision, a three-judge panel ruled that the office reasonably concluded the records being sought by St. Louis attorney Elad Gross were exempt from disclosure because of his threatened litigation.
Gross was seeking records about then-Attorney General Eric Schmitt’s participation in a U.S. Supreme Court case seeking to overturn the 2020 presidential election and the Republican Attorneys General Association’s robocall efforts encouraging “patriots” to participate in a march that ended on Jan. 6, 2021, with a violent attack on the U.S. Capitol.
“This case presents a unique question for which we have found no direct precedent – application of (Sunshine Law exemptions) to records created by a public governmental body in responding to a previous Sunshine Request where the threatened litigation concerns the public governmental body’s handling of that previous records request,” Judge Edward Ardini wrote in the 2-1 decision.
The Sunshine Law allows government agencies to close records about “legal actions, causes of action or litigation.” That exception doesn’t allow a record that should be open to be closed just because it might become evidence in a court case, Ardini wrote, but it does allow records created in contemplation of possible litigation to be closed.
“The nature of these records rendered them not merely discoverable or admissible in an enforcement action over the AGO’s compliance with the Sunshine Law concerning its response to Gross’s first request but go to the very core of such an action by disclosing the precise means utilized by the AGO to comply with its legal responsibilities,” Ardini wrote.
In a dissenting opinion, Judge Alok Ahuja wrote that there was no prospective or actual litigation when the records were created, so they must be open.
An “open ended application” of the litigation exemption which “authorizes the closure of any records which may ‘go to the very core of’ litigation threatened after the records’ creation, would result in precisely the sort of ‘extreme’ consequences of which (an earlier precedent) warned,” Ahuja wrote.
Since the lawsuit was filed in 2021, Schmitt has been elected to the U.S. Senate and replaced by Andrew Bailey, who defeated Gross, the Democratic nominee for attorney general, last year.
In an email to The Independent, Gross said he would appeal the decision.
“Attorney General Bailey is wrong to prevent taxpayers from seeing what our government is doing with our money,” Gross said. “We need transparency in our government.”
Gross has sued over Sunshine Law questions in the past, losing at the trial court level before gaining a win on appeal.
In 2021, the Missouri Supreme Court ruled, in a case brought by Gross, that government agencies cannot charge for time attorneys spend reviewing public records are requested under the Sunshine Law.
In the case decided Tuesday, Gross lost a summary judgment decision in Cole County. He raised 12 points in the appeal.
Along with arguing the trial court made a mistake by allowing the attorney general’s office to close some records, Gross sought to overturn the decision by claiming Cole County Circuit Judge Daniel Green made other errors.
Gross argued Green wrongly terminated the discovery process, limited his ability to question staff witnesses in person, and allowed the attorney general’s office to move the date promised for the delivery of records.
The decision was unanimous except for Ahuja’s dissent related to the question of whether the documents were related to litigation.
