The Missouri Attorney General’s Office is demanding that Camden County turn over certain legal billing statements requested through a Sunshine Law request made by a private citizen of the county in September 2017.

The Missouri Attorney General’s Office is demanding that Camden County turn over certain legal billing statements requested through a Sunshine Law request made by a private citizen of the county in September 2017.

The letter from the AG’s office also advises against referenced destruction of legal bills after the County’s auditor approves the bills for payment.

On September 6, 2017, Theresa Townsend requested via email to the Custodian of Records all bills from Charles McElyea, Ryan Harding, Matthew Growcock and Greg Williams, either as individuals or as members of law firms. She sought bills submitted January 1, 2016 through September 1, 2017.

While the email was to Camden County Clerk Rowland Todd, Matthew Growcock — an attorney with Lowther Johnson Attorneys, LLC in Springfield, Missouri — responded to Townsend on behalf of the county, saying that it was the County’s position that the records she had requested are closed records under Missouri Revised Statute 610.021(1).

“Should you have any authority suggesting otherwise, we would be happy to review it and re-evaluate this position,” concluded the attorney specifically hired by the Camden County Commission, not the Camden County Clerk, to advise the County on what is known collectively as the Sunshine Law, Missouri’s records and meeting statutes.

Townsend has now been able to do just that after filing a Sunshine Law violation complaint with the Missouri Attorney General’s Office.

Due to the nature of Townsend’s request, touching on attorney-client communication, a response to her complaint from the AG’s office took longer than normal due to research of statutory interpretation. The office issued its opinion June 1, 2018, citing its interpretation of case law on the subject that appears to have been first cited by Growcock.

The Lake Sun is still working to obtain copy of the County’s response.

However the statement from Assistant Attorney General Jason K. Lewis says the AG’s office believes that the County is required to produce the requested outside-counsel billing statement to Townsend.

RSMo Section 610.021(1) does allow public governmental bodies to close records related to legal actions, causes of action or litigation involving the public body and any confidential or privileged communications between the public body or its representatives, Lewis writes.

Legal bills though do not generally constitute privileged communication or have a basis to be closed records under state law.

To the extent a legal bill did disclose content of attorney-client communications or attorney work product, Section 610.021(1) only allows the public body to redact that part of the bill; it does not legally close the bill in its entirety.

Lewis refutes the County’s argument that Missouri case Tipton vs. Barton did not apply in this situation because the case did not involve active litigation, but disagrees with that opinion.

The Tipton case did partially relate to litigation with billing statements relating to the attorney’s preparation of pleadings.

Either way, though, Lewis writes that the lawyers of the AG’s office could find no authority under the Sunshine Law holding its interpretation of Section 610.021(1) subject to whether litigation was active or completed.

Additionally, the AG’s office found that just a cursory search of Camden County legal matters revealed that at least of the litigation the county attorney’s were involved in had been concluded by the time Townsend had made her request. So even under the County’s own interpretation, there would have been some bills that should have been available to Townsend.

According to the letter from the AG’s office, the County told them that it routinely destroys the original legal bills after the County’s auditor approves the bills for payment.

The Lake Sun is working to follow up on this matter as well, but is waiting to hear back from the County after an email Monday afternoon to the county clerk’s office.

Assistant Attorney General Lewis writes that this practice “raises serious legal implications under Missouri’s Local Records Law in Chapter 109. Moreover, if this practice was done to evade compliance with the Sunshine Law, the County would have violated the law’s requirements to ‘make available for inspection and copying’ the County’s records.”

Lewis states, “We respectfully demand that the County immediately allow Ms. Townsend to access its legal bills in a manner consistent with the Sunshine Law. The County should also implement measures to ensure that its responses to future public records requests are fully compliant with the Sunshine Law. In addition, the County should take immediate steps to ensure that it retains all public records as required by Chapter 109.”

Lewis offers assistance to the County for training or assistance in complying with the Sunshine Law, but advises that should future violations come to their attention, the AG’s office would consider taking additional measures to enforce the Sunshine Law as authorized under RSMo 610.027 and 610.030.

Section 610.027 outlines remedies for violations including civil suit in circuit court with the potential for a civil penalty of up to $1,000 for knowingly violating the law and up to $5,000 for purposely violating the law. Section 610.030 gives circuit courts jurisdiction to issue injunctions to enforce the provisions of the Missouri Sunshine Law. An enclosure with the letter to Growcock includes another letter to another law firm used frequently by the Camden County Commission. Deputy Attorney General Michael Martinich-Sauter addresses David R. Human of Husch Blackwell regarding the closure of attorney billing records on the grounds that billing records fall within the scope of attorney-client privilege.

Martinich-Sauter cites case law of Chaudhry v. Gallerizzo, Hampton Police Association v. Town of Hampton and Clarke v. Am. Commerce National Bank.

It is the AG’s opinion that attorney-client privilege, based on these cases, does not extend to billing records and expense reports as such records ordinarily reveal no confidential professional communications between attorney and client. If there are cases where attorney billing statements do have such information, the Missouri Court of Appeals has adopted the prevailing approach of distinguishing between billing statements containing generic descriptions of work — not privileged — and those with detailed time entries revealing confidential communications — which are privileged.

While the Husch Blackwell attorney did not provide any examples of billing-statement descriptions for guidelines, the AG’s office said it had been supplied copies of Husch Blackwell billing statements from the Alton Telegraph regarding an issue in Illinois.

Martinich-Sauter said these statements were all had generic descriptions of work performed that would not constitute detailed entries that would be considered privileged.

Townsend confirmed Monday that she had renewed her request for the legal records as advised by Assistant AG Lewis, but was also mulling her own lawsuit.

It should be noted that Growcock was hired by the Camden County Commission in March 2017 to handle Sunshine Law requests for the commission, even though the state-mandated Custodian of Records for the commission is the Camden County Clerk’s Office. Growcock was hired in the midst of an ongoing dispute between the commission and Clerk Rowland Todd over the human resources department. The dispute continues to this day via a federal lawsuit filed by Todd against the commission. The commission has claimed the clerk’s office was not responding appropriately to certain open records requests, issuing a record related to the human resources department that the commission believed should have been closed. There was also a question on the redaction of the record.

The clerk’s office was also removed as the minute-taker of county commission meetings.

All or nearly all open records request are now routed through Growcock for legal counsel before being issued or denied by Growcock, not the Custodian of Record. Todd and Presiding Commissioner Greg Hasty are now both up for re-election. Both are facing challengers.