Judge: Clay County violated records law in handling request from reporter for The Star
Clay County committed two violations of a Missouri transparency law when it frustrated an effort by The Kansas City Star to learn how much taxpayers spent on outside lawyers, a judge ruled Monday.
Judge Roger Prokes, a visiting judge from Nodaway County, ruled that Clay County violated the Missouri Sunshine Law when it demanded that the The Star pay $4,200 to have a lawyer with the Spencer Fane law firm representing Clay County review his own billing records before releasing them to a reporter.
Prokes also rejected Clay County’s argument that law firm invoices sought by The Star could reveal privileged attorney-client information between Clay County and Spencer Fane attorneys.
“[T]he documents were not prepared in anticipation of litigation, but in anticipation of getting paid,” Prokes wrote.
The Sunshine Law allows the public the right to inspect government records, with certain exceptions.
Prokes stopped short of finding that Clay County violated the Sunshine Law on purpose.
Monday’s ruling is another in a string of judicial decisions going against the actions and policies of Clay County government, which even one of its commissioners last year at a public meeting said had developed a reputation across Missouri for dysfunction.
Clay County is the subject of an ongoing audit by the Missouri Auditor that citizens requested after suspecting waste and corruption by certain county leaders. Clay County also lost a lawsuit filed by its elected sheriff who accused a majority of commissioners of cutting his office’s budget as an act of political retribution.
Nicole Brown, assistant county administrator, said the county plans an appeal.
“The County does not believe that the Sunshine Law was intended to require the County’s taxpayers to subsidize the operations of the news media,” Brown said in an email late on Monday. “Instead, the Sunshine Law is set up so that those who request records must pay the costs associated with satisfying their request. The County will appeal this decision.”
Bernie Rhodes, a lawyer representing The Star in the lawsuit, said the judge’s decision supports suspicions of Clay County taxpayers.
“Today’s result confirms what Clay County taxpayers have known for a long time: That something is going on at the county courthouse that is wrong,” said Bernie Rhodes, a lawyer representing The Star in its lawsuit. “This is another example of the people’s business being done in secret and we appreciate the court’s ruling finding that has to stop.”
A reporter for The Star last year filed a formal request with the county to obtain invoices it received from Spencer Fane to see how much Clay County taxpayers spend on outside law firms to carry out ordinary government functions.
Clay County differs from most counties in major cities in that it does not have its own attorney on staff and instead relies on — and pays an hourly rate to — private law firms to review records requests, write ordinances and attend public meetings.
Joe Hatley, a Spencer Fane lawyer representing Clay County, responded that it would require about 11 hours to review 45 pages of his firm’s invoices to the county to make sure they contained nothing that was exempt from disclosure under the Sunshine Law. At $373.50 an hour for 11 hours of work, Hatley said The Star must pay $4,200 to access the records.
Rhodes argued in The Star’s lawsuit and at a March 11 hearing that while the Sunshine Law allows government bodies to charge fees to research and copy records, it has to be government employees using the lowest amount of charges to produce the records.
Hatley argued that because Clay County does not have its own attorney, it became his responsibility to review the records and that the county could pass those charges on to The Star. But Prokes did not find Hatley’s position persuasive.
Hatley also argued that legal invoices could divulge attorney-client information, which is off limits to outsiders in nearly all situations.
Prokes also ruled that law firms that bill public clients should know not to put sensitive information in their invoices.
“If the preparer of these statements included information in the billing that may betray strategy, etc., while knowing the billings were to a public entity and subject to transparency, they must live with the consequences,” Prokes wrote.
After The Star sued Clay County last year, a whistleblower provided most of the invoices that The Star sought in its records request. Those invoices showed Spencer Fane billed Clay County at least $147,000 since 2016 primarily to review requests for records, a function that’s often carried out by city or county clerks elsewhere.
“We will be filing a request (Tuesday) to find out just how much the Clay County taxpayers spent to defend this lawsuit,” Rhodes said, “which the county just lost.”
This story was originally published March 23, 2020 at 10:13 PM.
