(Missouri Independent) – A new lawsuit will test whether public agencies can hide how much they are paying attorneys and determine how far they must go in searching for records sought under the Missouri Sunshine Law.
The lawsuit, filed Sept. 10 in Jefferson City by lobbyist John Gaskin of Flotron McIntosh, accuses the Missouri State Employees Retirement System of improperly closing the contracts with and bills from law firms representing the agency in court. Gaskin’s lawsuit also accuses the agency, known as MOSERS, of violating the law by claiming that Gaskin’s demand for records was too burdensome.
“They kind of took the same approach that the Cole County Prosecuting Attorney took a few years ago, that there are records we are not going to look for,” attorney David Roland said in an interview with The Independent on Monday. “That is just not a reason they are allowed to give and they should know that.”
Roland has earned a reputation as an expert in Sunshine Law cases through his nonprofit, Freedom Center of Missouri. The organization takes cases from clients who otherwise could not afford representation in public records cases.
In early 2019, Roland won a judgment in which Cole County was ordered to pay $51,166 in fines and attorney fees because former Prosecutor Mark Richardson responded to Sunshine Law requests by saying they were too burdensome and he would not search for records.
Bills and contracts for legal work have been considered public records since a 1988 Court of Appeals ruling, Roland said. The records for legal work not connected to litigation have a few redactions to protect privileged information, he noted.
“(MOSERS) could have done the exact same thing with litigation-related documents, and our lawsuit says it is a choice you are not able to make,” Roland said.
MOSERS has not yet filed a response to the lawsuit.
The retirement system produced thousands of pages of documents for Gaskin and believes its decisions on what is public and what is not are correct, spokeswoman Candy Smith wrote in an email.
“Some of Mr. Gaskin’s requests sought closed records under the Sunshine Law, including closed records that MOSERS is not permitted by law to make available to the public,” Smith wrote. “MOSERS explained to Mr. Gaskin why it did not produce the closed records sought by him.”
The litigation will show that MOSERS has acted within the law, she wrote.
“MOSERS believes that Mr. Gaskin’s lawsuit is without merit and looks forward to explaining its position in court,” Smith wrote.
The case began when Gaskin sent open records request in June to MOSERS, which manages about $8 billion to pay for current and future retirement benefits for state employees. He asked for records detailing how it hires attorneys, how much they are paid, and the terms of their employment. He also asked for settlement agreements from lawsuits where any party waived claims to end litigation.
Along with legal work done for the agency, Gaskin asked for ownership records for companies holding MOSERS’ investments and all vendor contracts, including investment advisors. He asked for partnership agreements for limited partnerships and which companies holding investments were “not incorporated or formed within the United States.”
MOSERS didn’t claim that all the records being sought were closed, but it did deny any records related to work done by attorneys hired for ongoing litigation. The 1988 precedent cited by Gaskin in one of his requests is no longer valid because revisions to the Sunshine Law have made everything related to a lawsuit a closed record, General Counsel Abby Spieler wrote in one response.
“MOSERS will not provide the requested records related to legal services sought for legal actions, causes of action, or litigation involving MOSERS because such records are closed records exempt from public disclosure,” Spieler wrote.
The stance MOSERS is taking is the opposite of the position of Secretary of State Jay Ashcroft and State Treasurer Scott Fitzpatrick, who are engaged in a lawsuit over a ballot measure.
The treasurer’s office is paying $495 an hour for representation by attorney Chuck Hatfield. The secretary of state’s office is paying $325 an hour to attorney Marc Ellinger.
And in response to Gaskin’s request for records of investments in companies “not incorporated or formed within the United States,” Spieler wrote that “MOSERS would be improperly required to review every investment-related document since July 1, 2016…”
The Sunshine Law doesn’t require agencies “to conduct such an expansive investigation in order to respond to a records request,” she wrote.
The lawsuit also accuses MOSERS of other violations, including improperly claiming that trade secrets exemptions prevent it from disclosing some records and withholding public records, and substituting a spreadsheet with only a portion of the information requested.
The Sunshine Law doesn’t allow agencies to create documents in order to hide public records, Roland said.
“It is clear it was created after the request so they can say they produced something,” he said.
Records showing how public money is spent — and why — are public documents, said Jean Maneke, an attorney who advises the Missouri Press Association on Sunshine Law issues.
“I understand that the courts will be protective of anything that would seem to be attorney-client privileged – Missouri courts always have been,” Maneke wrote in an email. “ At the same time, how a public body spends its public funds is not a subject that can be confidential.”