ATTORNEY GENERAL OF MISSOURI

ANDREW BAILEY

March 18, 2024

Western Cass Fire Protection District

Board President Sue Hosterman
c/o Aaron Racine
via email

Dear Mr. Racine,

As you know, it has been brought to the attention of the Missouri Attorney General’s
Office that the Western Cass Fire Protection District has implemented a policy
requiring that citizens pay a $50 deposit when submitting a public records request.
We have thoroughly reviewed this matter. For the reasons outlined below, we insist
that the District reverse course and adopt a compliant policy that does not impose
unauthorized fees on citizens.

The Missouri Sunshine Law allows public governmental bodies to charge citizens
limited fees for producing public records. Those fees are set forth in Section 610.026.

Fees for paper records are capped at 10 cents per page under Section 610.026.1(1), in
addition to separately-authorized fees for search, research, and duplication time.

Electronic records, on the other hand, are addressed in Section 610.026.1(2). Fees for
producing electronic records are limited to “providing access to public records
maintained on computer facilities to include only the cost of copies, staff time, and
the cost of the medium used for duplication.” R.L. Polk & Co. v. Missouri Dep't of
Revenue, 309 S.W.3d 881, 885 (Mo. App. W.D. 2010). Flat, across-the-board fees in
the context of electronic records “would not properly take into account the costs the
statute authorizes [a public governmental body] to include in its fee.” Id.
Furthermore, “[w]here a uniform per record fee is not expressly authorized by the
statute, and where a per record fee for the transfer of electronic records does not
correspond to or properly account for the types of costs listed in the statute,” a flat fee
“for records provided electronically through the internet was not in compliance with
the [Sunshine Law’s] requirements.” Id.

Broadway Building
P.O. Box 899
Jefferson City, MO 65102
Phone: (573) 751-3321
www.ago.mo.gov
Even if the District refunds any portions of the fee if actual costs are lower then $50,
such that the $50 is not a uniform per-record fee, the District’s policy is problematic
for at least three other independent reasons.

First, the Sunshine Law authorizes public governmental bodies to charge advance
fees in narrow situations. Section 610.026.2 states that “payment of such copying
fees may be requested prior to the making of copies.” (Emphasis added). The
Missouri Supreme Court recently considered the scope of advance fees: “Section
610.026.1(1) provides a requester ‘may request the public governmental body to
provide an estimate of the cost’ before producing copies, and section 610.026.2
authorizes a public governmental body to request payment of ‘such copying fees’ prior
to making copies.” Gross v. Parson, 624 S.W.3d 877, 888 (Mo. 2021). The Court held
that a public governmental body was authorized by “Section 610.026.2 to require
advance payment of statutorily authorized copying fees,” but not advance payment
of review time.

If a records request seeks only electronic records, no copying is necessary. By the

legislature’s enactment of a statute addressing advance fees in a specific context,
there are good reasons to think that the legislature intended to preclude advance fees
in all other contexts. Here, the District’s policy states that the fee is designed for
“researching, gathering, reproduction and communication[.]”

Second, even if the District ultimately refunds a portion later, the citizen has
tendered to a public governmental body some amount of money that must be
withdrawn from his or her personal accounts. Indeed, the policy requires citizens to
tender $50 even before the District has begun searching for records. The citizen has
lost the time value of the citizen’s money.

To that point, a refund is contingent on the Board’s approval. The policy states that
“a refund request of the unused portion of the deposit” will be submitted as a decision
item at a monthly Board meeting. Placing a refund request in the decision-making
discretion of a multi-member body, which requires a quorum to meet and vote, is not
a guarantee that a refund will be provided.

Third, the District’s policy notes that it has hired a contractor for record-keeping and
administrative duties. The District should be mindful that Section 610.029.1
prohibits public governmental bodies from entering into a contract for:

the creation or maintenance of a public records database if

that contract impairs the ability of the public to inspect or
copy the public records of that agency, including public
records that are online or stored in an electronic record-
keeping system used by the agency. Such contract shall not
allow any impediment that as a practical matter makes it
 more difficult for the public to inspect or copy the records
than to inspect or copy the public governmental body’s
records.

Hiring an outside contractor coupled with a mandatory $50 deposit may be

“impair[ing] the ability of the public to inspect or copy the [District’s] public records.”

The choice to hire an outside contractor and voluntarily assume a variable cost,
rather than the fixed cost of paid employees already on the District’s payroll, should
not be passed along to citizens beyond what would ordinarily be expected if a District
employee were to fill that role. This further underscores why the legislature may have
intended Section 610.026.2’s advance-payment to apply only to physical copies.
Purchasing paper for making copies is a variable cost that changes based on a records
request, and so Section 610.026.2 may have been designed to ensure that a public
governmental body does not need to purchase reams of paper if the requestor is
unable or unwilling to pay. Most public governmental bodies retain paid staff—a
fixed cost—that will not need to be paid extra to process a particular records request.
The District’s choice to assume a new variable cost is its own choice that should not
be passed along to residents either through (1) higher-than-expected costs beyond
what is customary for an employee to earn; or (2) advance deposit fees.

At the present time, we believe the best course of action is for the District to
immediately reverse course and implement a new policy no later than April 15, 2024.

Please send a copy of the revised policy to the email address below. If the District
needs more time to implement a new policy, please contact me and explain the need
for an extension. If the Attorney General’s Office does not receive further
communication before April 15, we will assume the District has elected to stand firm
with its current policy.

Finally, this letter should be construed as notice to the District of its Sunshine Law
obligations. Continuing to follow the District’s present policy in the future may be
evidence of a knowing or purposeful violation of the Sunshine Law if a Sunshine Law
violation is established.

Sincerely,

/s/ Jason K. Lewis

Jason K. Lewis
General Counsel
Missouri Attorney General’s Office
(573) 751-8905
SunshineComplaint@ago.mo.gov

cc: Custodian of Records for the Western Cass Fire Protection District