Hardly a week goes by without a member of the public in this state finding what appears to be a public body violating the Missouri sunshine law. The problem these folks face is finding a remedy. Usually, the local prosecutor is not able to bring these lawsuits because that individual is taxed with representing the offending public body. At times, these folks find the Missouri Attorney General's office is not particularly responsive.
And getting an attorney in private practice to take a case like this is very difficult. First, it's hard to find an attorney versed in this law. And when you do, many attorneys cannot afford to take these cases unless they are being paid on an hourly basis. Most private citizens cannot afford to pursue such matters because they are time consuming and can last a long time, meaning legal fees can be huge.
A good example of this is the lawsuit John Chasnoff filed in 2006 against the St. Louis Police Department after he was denied access to certain personnel records. The department announced its intent to release these records, but the officers involved decided to intervene. Three lawsuits later, the Eastern District Court of Appeals issued a decision this week holding that Chasnoff was entitled to these records. And in conjunction with that holding, it granted Chasnoff his attorneys fees totaling $100,000.
Given that this case lasted nine years, that means the attorney was paid about $11,000 a year. I guarantee there's no way this attorney was fully compensated for the time involved in this case. But I also say with strong confidence that this is the largest fee award in this State's sunshine law history. At least it is enough perhaps to get the attention of some public bodies.
But also of interest in this case is what the court said, along with the fee award. First, it said, in that the information sought related to the conduct of public officials in regard to their officials duties, there was a strong argument that this was a matter of public concern and that the employees had no right to privacy in regard to the information in these records. I think that lays a foundation for arguments in the future that a number of governmental employees' records relating to misconduct could under certain sets of facts be available to the public.
Secondly, the court noted that past practice by a public body did not guarantee future privacy. (After all, remember that Missouri law says closure is a privilege and not a requirement.) Once law enforcement decided to release the information, the employees had no standing to claim the material should be closed, especially where they had no evidence that closure had been promised.
That's a lot to think about. Given that this case took nine years to get to this point, one should feel free to take a while to go digest it. But an award of attorney's fees of that magnitude cannot help but make John Chasnoff Happy!