A Missouri judge has sided with a genealogy research group in a ruling that could ultimately have implications for the openness of records related to COVID-19 cases.
Cole County Circuit Judge Patricia S. Joyce ruled the Missouri Department of Health and Senior Services violated the state Sunshine Law when it first sought to charge nearly $1.5 million to provide historical birth and death records and then denied the group's request altogether.
“For any state agency to quote a fee of $1.49 million for a simple database extract – they had to know that was wrong,” said Brooke Schreier Ganz, founder and president of Reclaim the Records, a California-based nonprofit that aims to make public records available online for the benefit of genealogical and historical researchers.
In a detailed 53-page decision, Joyce found that DHSS, which maintains the state’s birth and death records, had “knowingly and purposely” violated the Sunshine Law on four separate occasions. She slapped the state with $12,000 in penalties and ordered it to pay Reclaim the Records’ legal fees, which could amount to $150,000.
“Our position at Reclaim the Records is that public data belongs to the public,” Ganz said. “This is a form of public data that is easily and freely available in other states. There was no reason for Missouri to be withholding it from the public.”
Lisa Cox, a spokeswoman for DHSS, said the agency was reviewing the ruling and “weighing the possibility of whether or not to appeal” it.
Kansas City lawyer Bernard Rhodes, who represented Reclaim the Records, said Joyce’s ruling was important not just because it vindicated his client. He noted that many government are refusing to provide information about COVID-19 cases, arguing that health department rules don’t “require” them to do so but simply “allow” them to do so.
“Judge Joyce squarely rejected that argument,” Rhodes said, “ruling that under the Sunshine Law all government records are open unless they are ‘specifically closed.’ And because the Vital Records statute expressly provides that DHSS ‘may’ provide birth and death listings, such listings are not ‘specifically closed.’”
Rhodes said he’d been making that same argument since the beginning of the COVID-19 pandemic when seeking the release of COVID-19 records.
“This decision will make our work in that regard much, much easier,” he said.
Reclaim the Records first made its request under the Sunshine Law in early 2016, when it sought Missouri birth and death indexes since 1910. After more than four months, DHSS got back with an estimate of how much the request would cost: an eye-popping $1.5 million, based on what it said was 35,000 man-hours needed to find the records, multiplied by an hourly rate of $42.50.
When Rhodes, who’d been retained by Reclaim the Records, pointed out the request could be fulfilled with simple date-range searches, DHSS’s in-house lawyer came back with a revised cost estimate: $5,000, or a 99.7 percent decrease.
That wasn’t good enough for Rhodes. The revised estimate was based on separate searches for each year and Rhodes said a single search for multiple years could be done, making the cost even cheaper.
At that point, DHSS adopted a new strategy: It said it would deny Reclaim the Records' request for the records altogether.
That occurred after DHSS consulted with a former state registrar, who advised it to “require them to take you to court” and use the delay caused by the lawsuit to get the legislature to change the law.
In her decision, Judge Joyce said the records sought by Reclaim the Records were indisputably public records that fell under no exception to the Sunshine Law. She found that DHSS had violated the law both by denying Reclaim the Records’ request – DHSS has since fulfilled many similar requests made on an individual basis, Joyce pointed out – and by charging excessive fees.
She cited a case in which the Beagle Freedom Project made a Sunshine Act request to the University of Missouri for records concerning the university’s use of dogs and cats in research. MU responded by providing a cost estimate of $82,222, which it later conceded was excessive and revised downward to $8,950.
A court later found that MU had violated the Sunshine Law because the cost estimate “was tantamount to a denial of the request” in that it “for all practical purposes prevented Plaintiff from obtaining the public documents and frustrated the twin policies of openness and lower cost embodied in the Open Records Act.”
Joyce concluded that DHSS should have charged Reclaim the Records no more than $2,557.30, based on the average hourly rate authorized under the Sunshine Law.
Ganz said DHSS had not only obstructed its efforts but sought to dig up information on Reclaim the Records from at least three other state health departments.
“It was a concerted, secret effort behind the scenes to get dirt on our organization,” she said.
Rhodes said the decision proved “that the government is not above the law, which is what the department thought they were when they decided to engage in their secret plan of denying our request and making us sue while they went to try to change the law.”
Although DHSS lobbied for the law to be changed, the legislature opted to leave it alone.
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