IN THE CIRCUIT COURT OF COLE COUNTY, MISSOURI
CIVIL DIVISION
BROOKE SCHREIER GANZ, both individually and as an authorized representative of RECLAIM THE RECORDS, a nonprofit, unincorporated association,
Plaintiffs,
vs.
MISSOURI DEPARTMENT OF
HEALTH AND SENIOR SERVICES,
Defendant.

)
)
)
)
)
)
)
)
)
)
)
)
)
)

Case No.16AC-CC00503

MEMORANDUM AND JUDGMENT
The Court takes up (1) Plaintiffs Reclaim the Records and Brooke Schreier Ganz’s
motion for summary judgment, (2) Defendant Missouri Department of Health and Senior
Services’ (“DHSS”) motion for summary judgment, and (3) DHSS’ motion for leave to
supplement its opposition to Plaintiffs’ motion for summary judgment. For the reasons
stated below, the Court sustains Plaintiffs’ motion for summary judgment and denies both
Defendant’s motion for summary judgment and its motion for leave.
Summary Judgment Standards
“The purpose of summary judgment … is to identify cases (1) in which there is no
genuine dispute as to the facts and (2) the facts as admitted show a legal right to judgment
for the movant.” ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d
371, 380 (Mo. banc 1993); Goerlitz v. City of Maryville, 333 S.W.3d 450, 453 (Mo. banc
2011) (summary judgment proper when there is no genuine issue of material fact and the
moving party is entitled to judgment as a matter of law).

32469802v.1

 A party moving for summary judgment is required to attach to its motion a statement of uncontroverted material facts which sets forth, with particularity and in separately
numbered paragraphs, each material fact as to which movant claims there is no genuine
issue. Mo. Sup. Ct. R. 74.04(c)(1). The party opposing the motion must then admit or deny
each of the movant’s factual statements and must support each denial with specific references to the record, or the fact is deemed admitted. See Cent. Tr. & Inv. Co. v. Signalpoint
Asset Mgmt., LLC, 422 S.W.3d 312, 320, 322 (Mo. banc 2014) (“[T]he non-movant must
support denials with specific references to discovery, exhibits, or affidavits demonstrating
a genuine factual issue for trial. Facts not properly supported … are deemed admitted.”)
(citation omitted); Old Republic Nat'l Title Ins. Co. v. Cox, 453 S.W.3d 780, 786 (Mo. App.
2014) (“failure to deny the allegations and reference a document showing a genuine dispute
results in [the] admission of these assignments”).
Here, DHSS admitted nearly all of Ms. Ganz’s factual statements. As to a few statements, DHSS asserted the facts are immaterial, but failed to controvert the truth of such
statements. As a result, the Court considers those facts to be true. See Blackwell Motors,
Inc. v. Manheim Servs. Corp., 529 S.W.3d 367, 379 (Mo. App. 2017) (finding denial of
facts was ineffectual where only basis for denial was non-movant’s assertion the facts were
irrelevant and immaterial); Lindsay v. Mazzio’s Corp., 136 S.W.3d 915, 920 (Mo. App.
2004) (same).
In those few instances in which DHSS properly controverted a factual statement,
the Court has adopted DHSS’ version of the facts. See ITT Commercial Fin. Corp. v. MidAm. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993) (“When considering
appeals from summary judgments, the Court will review the record in the light most favorable to the party against whom judgment was entered.”).
2
32469802v.1

 Findings of Fact
Against this backdrop, the Court finds the following facts to be uncontroverted.
Reclaim the Records
1.

Plaintiff Brooke Schreier Ganz is the founder, and current President, of Re-

claim the Records, a non-profit association of genealogists, historians, researchers, journalists, and open government advocates committed to making genealogical data readily
available to the public for free. (Def. Resp. to Pl. SOF ¶ 1).
2.

Ms. Ganz is a genealogist and computer programmer who began Reclaim

the Records in 2015 out of her frustration with getting historical marriage license indexes
from the New York City Municipal Archives. (Def. Resp. to Pl. SOF ¶ 2).
3.

When the Archives refused to provide her with copies of the indexes, Ms.

Ganz became the first known genealogist in the United States to successfully sue a government archive using a state Freedom of Information law for the return of records to the
public. (Def. Resp. to Pl. SOF ¶ 3).
4.

Ms. Ganz then had the microfilm copies she won from the Archives digi-

tally scanned, and then uploaded the new digital images to the Internet Archive, a nonprofit online library, for free public use. She also later created a website and posted the
marriage indexes online, where they are available for free. (Def. Resp. to Pl. SOF ¶ 4).
5.

Since then, Ms. Ganz and Reclaim the Records have continued to use state

and federal open records laws to obtain copies of important genealogical data sets and post
those records online for free. (Def. Resp. to Pl. SOF ¶ 5).
6.

In addition, where necessary, Ms. Ganz and Reclaim the Records have

brought open records lawsuits to reclaim public records, as they have here. (Def. Resp. to
Pl. SOF ¶ 6).
3
32469802v.1

 7.

Once the group reclaims these records, they are made available for free to

the public, which uses them for finding family members, tracing family lineage, preparing
family trees, and much more. (Def. Resp. to Pl. SOF ¶ 7).
8.

Since its founding, the group has reclaimed more than 28 million records

for the public’s benefit. (Def. Resp. to Pl. SOF ¶ 8).
9.

In February 2017, the group became a 501(c)(3) non-profit organization.

(Def. Resp. to Pl. SOF ¶ 9).
10.

The group’s board of directors includes a Fellow of the American Society

of Genealogists (membership is limited to only 50 living fellows); the former Chief Technology Officer of FamilySearch, the largest genealogy organization in the world, which is
operated by The Church of Jesus Christ of Latter-day Saints; and a forensic consultant to
the U.S. Army who conducts genealogical research to identify potential family members
of unaccounted soldiers from World War I, World War II, Korea and Vietnam for possible
DNA matches with soldier’s remains recovered from the battlefield. (Def. Resp. to Pl. SOF
¶ 10).
11.

As founder and President of Reclaim the Records, Ms. Ganz will fairly and

adequately represent the interests of the group’s members. (Def. Resp. to Pl. SOF ¶ 11).
The Sunshine Law Requests
12.

On Saturday, February 13, 2016, Ms. Ganz, on behalf of Reclaim the Rec-

ords, e-mailed two Missouri Sunshine Law requests to Defendant Missouri Department of
Health and Senior Services. (Def. Resp. to Pl. SOF ¶ 12).
13.

One request was for Missouri birth listings for the period January 1, 1910,

through December 31, 2015, while the second request was for Missouri death listings for
the same period. (Def. Resp. to Pl. SOF ¶ 13).
4
32469802v.1

 14.

In her requests, Ms. Ganz expressly stated, “this is a request for just the

basic index to the [births/deaths], and is not a request for any actual [birth/death] certificates.” (Def. Resp. to Pl. SOF ¶ 14).
15.

On Wednesday, February 17, 2016, Nikki Loethen, DHSS’ General Coun-

sel, reviewed the two requests and directed Emily Hollis (also in the DHSS Office of General Counsel) to “do the 3-day response” for each request. (Def. Resp. to Pl. SOF ¶ 15).
16.

Ms. Loethen’s reference to “the 3-day response” is to Section 610.023.3 of

the Missouri Revised Statutes, which provides as follows: “Each request for access to a
public record shall be acted upon as soon as possible, but in no event later than the end of
the third business day following the date the request is received by the custodian of records
of a public governmental body.” Mo. Rev. Stat. § 610.023.3.
17.

Later that same day, Ms. Hollis sent two otherwise identical e-mails to Ms.

Ganz—one e-mail in response to the request for birth listings and the other in response to
the request for death listing. (Def. Resp. to Pl. SOF ¶ 17).
18.

In her e-mails, Ms. Hollis stated that “[t]he Department is working to fill

your request” and said that payment of research and copy charges may be required “prior
to your receipt of the requested records.” (Def. Resp. to Pl. SOF ¶ 18).
19.

A copy of Ms. Hollis’ e-mail to Ms. Ganz is below:

5
32469802v.1

 (Def. Resp. to Pl. SOF ¶ 19) (highlighting added).
20.

The same day, Ms. Hollis wrote two employees in DHSS’ Division of Com-

munity and Public Health with directions to “[p]lease begin collection of records.” (Def.
Resp. to Pl. SOF ¶ 20).

6
32469802v.1

 Ms. Ganz follows up
21.

On April 18, 2016, when Ms. Ganz had still not received either the birth and

death listings—or a cost estimate for the listings—she again e-mailed DHSS to follow up
on her requests. (Def. Resp. to Pl. SOF ¶ 21).
22.

On April 26, 2016, Ms. Ganz received an e-mail from Dr. Loise Wambuguh

who asked Ms. Ganz to contact her about her requests. (Def. Resp. to Pl. SOF ¶ 22).
23.

On April 27, 2016, Ms. Ganz spoke by telephone with Dr. Loise Wam-

buguh, who is the acting Bureau Chief for the Bureau of Vital Statistics in DHSS’ Division
of Community and Public Health. (Def. Resp. to Pl. SOF ¶ 23).
24.

Dr. Wambuguh told Ms. Ganz that DHSS’ birth listings only went back to

1920. (Def. Resp. to Pl. SOF ¶ 24).
25.

Dr. Wambuguh also told Ms. Ganz that DHSS’ death listings only went

back to 1968—and that death records prior to 1968 had previously been transferred to the
Missouri State Archives. (Def. Resp. to Pl. SOF ¶ 25).
26.

Dr. Wambuguh also told Ms. Ganz that DHSS would provide names and

the date of birth or death, but would not provide either the gender of the person or a
birth/death certificate number (which Ms. Ganz had stated in original request she would
like to have if available). (Def. Resp. to Pl. SOF ¶ 26).
27.

In response, Ms. Ganz agreed to modify her requests in accordance with

these date parameters, and to remove her request for gender and for certificate numbers.
(Def. Resp. to Pl. SOF ¶ 27).
28.

At no time during the call did Dr. Wambuguh ever state that DHSS had

denied the requests. (Def. Resp. to Pl. SOF ¶ 28).

7
32469802v.1

 29.

Dr. Wambuguh concluded the call by stating that someone would be getting

back to Ms. Ganz with a cost estimate. (Def. Resp. to Pl. SOF ¶ 29).
Ms. Ganz follows up again
30.

On May 23, 2016, Ms. Ganz called Dr. Wambuguh and left her a voicemail

stating that she was still waiting for a cost estimate. (Def. Resp. to Pl. SOF ¶ 30).
31.

Shortly thereafter, Ms. Loethen (DHSS’ General Counsel) called Ms. Ganz.

(Def. Resp. to Pl. SOF ¶ 31).
32.

During that call, Ms. Loethen discussed Ms. Ganz’s requests with her. (Def.

Resp. to Pl. SOF ¶ 32).
33.

Ms. Loethen also told Ms. Ganz that DHSS was still working to provide her

with a cost estimate for her requests. (Def. Resp. to Pl. SOF ¶ 33).
34.

At no time during the call did Ms. Loethen ever state that DHSS had denied

the requests, or was considering denying the requests. (Def. Resp. to Pl. SOF ¶ 34).
35.

On May 27, 2016, Ms. Loethen wrote Ms. Ganz an e-mail confirming her

phone conversation with Ms. Ganz. (Def. Resp. to Pl. SOF ¶ 35).
36.

In her e-mail, Ms. Loethen stated that DHSS was still working on a cost

estimate for fulfilling Ms. Ganz’s requests pursuant to Chapter 610, RSMo, and stated that
the cost estimate would be provided in approximately five business days. (Def. Resp. to Pl.
SOF ¶ 36).
37.

Chapter 610 of the Missouri Revised Statutes of Missouri is the Missouri

Sunshine Law. See Mo. Rev. Stat. § 610.010, et seq.
38.

At no point in the e-mail did Ms. Loethen state that DHSS had denied Ms.

Ganz’s request, or that it was considering denying the requests. (Def. Resp. to Pl. SOF ¶
38).
8
32469802v.1

 39.

A copy of Ms. Loethen’s e-mail is set forth below:

(Def. Resp. to Pl. SOF ¶ 39) (highlighting added).
Trolling for Information on Reclaim the Records
40.

On June 15, 2016, Dr. Wambuguh attended a meeting with other members

of DHSS’ Division of Community and Public Health concerning Ms. Ganz’s requests.
(Def. Resp. to Pl. SOF ¶ 40).

9
32469802v.1

 41.

Craig Ward, the DHSS State Registrar, was invited to attend the meeting,

but he was out of the office and did not return until the next day, June 16, 2016. (Def. Resp.
to Pl. SOF ¶ 41).
42.

The following day, June 17, 2016, Mr. Ward sent a series of e-mails to con-

tacts at other state and city health departments scheduling phone calls with each of them to
obtain information about Reclaim the Records. (Def. Resp. to Pl. SOF ¶ 42).
DHSS’ Cost Estimates
43.

Meanwhile, on June 22, 2016, Ms. Ganz sent Ms. Loethen an e-mail seeking

information as to the status of her requests. (Def. Resp. to Pl. SOF ¶ 43).
44.

Two days later, on June 24, 2016, Ms. Hollis responded to Ms. Ganz’s re-

quests with a cost estimate of $1.49 million, which she stated was pursuant to Section
610.026, RSMo (the Missouri Sunshine Law).

10
32469802v.1

 (Def. Resp. to Pl. SOF ¶ 44) (highlighting added).
45.

DHSS’ estimate assumed it would take 35,064 hours (or more than four

years of someone working 24 hours a day, seven days a week) to retrieve the records. (Def.
Resp. to Pl. SOF ¶ 45).
46.

On June 28, 2016, Ms. Loethen sent Ms. Ganz an e-mail revising the hourly

rate by 72¢ an hour, but maintaining it would still take 35,064 hours of DHSS staff time to
provide the listings.

11
32469802v.1

 (Def. Resp. to Pl. SOF ¶ 46 (highlighting added)).
Ms. Ganz retains counsel
47.

Ms. Ganz retained counsel, Bernard Rhodes of Lathrop Gage, to assist her

in obtaining the records. (Def. Resp. to Pl. SOF ¶ 47).
48.

On June 28, 2016, Mr. Rhodes spoke by telephone with Ms. Loethen, who

advised Mr. Rhodes that the $1.49 million cost estimate was based on separate searches for
each day of the two relevant periods, i.e., the 96-year period for the birth listings (19202015), and the 48-year period for the death listings (1968-2015). (Def. Resp. to Pl. SOF ¶
48).

12
32469802v.1

 49.

In response, Mr. Rhodes advised Ms. Loethen that the $1.49 million cost

estimate violated the Sunshine Law, which expressly provides that the only allowable
charges are the actual time it takes a staff member to retrieve the records from the database.
(Def. Resp. to Pl. SOF ¶ 49).
50.

Mr. Rhodes also asked Ms. Loethen to provide him information as to the

type of database DHSS used to maintain the birth and death lists so that he could propose
a search methodology consistent with the Sunshine Law. (Def. Resp. to Pl. SOF ¶ 50).
51.

On July 7, 2016, Ms. Loethen sent Mr. Rhodes an e-mail advising that

DHSS maintains the listings on an IBM mainframe computer in a flat file database. (Def.
Resp. to Pl. SOF ¶ 51).
52.

On July 12, 2016, Mr. Rhodes sent Ms. Loethen an e-mail and explained

how—using the information Ms. Loethen had provided about DHSS’ computer system—
the two listings could be produced by using two simple date range searches, i.e., one search
for the birth records and one search for the death records. (Def. Resp. to Pl. SOF ¶ 52).
53.

On July 22, 2016, when Mr. Rhodes had not received any response from

Ms. Loethen, he sent a follow-up e-mail to her. (Def. Resp. to Pl. SOF ¶ 53).
54.

Later that same day, Ms. Loethen responded that she was still waiting to

hear from DHSS staff “whether lists compliant with Section 193.245 could be created in
fewer hours,” utilizing the methodology proposed by Mr. Rhodes. (Def. Resp. to Pl. SOF
¶ 54).
DHSS’ Revised Cost Estimate
55.

On August 1, 2016, when Mr. Rhodes had not received a response from Ms.

Loethen as to whether the birth and death listings could be created using the method he
proposed, he sent a follow-up e-mail to Ms. Loethen. (Def. Resp. to Pl. SOF ¶ 55).
13
32469802v.1

 56.

Later that same day, Ms. Loethen sent Mr. Rhodes an e-mail dramatically

revising the cost estimate from $1,464,973.92 to $5,174.04.

(Def. Resp. to Pl. SOF ¶ 56 (highlighting added)).
57.

In her e-mail, Ms. Loethen explained the difference between the two esti-

mates by stating that “[s]taff has determined that they can run the lists for one year at a
time versus one day at a time as originally estimated.” (Def. Resp. to Pl. SOF ¶ 57).
58.

Ms. Loethen also stated that she had asked DHSS staff to research whether

it was possible—as Mr. Rhodes had stated—to run all the years in one search, and said that
14
32469802v.1

 if staff said such a search could not be run, “I have asked them to explain why.” (Def. Resp.
to Pl. SOF ¶ 58).
59.

Ms. Loethen told Mr. Rhodes, “I will let you know what I learn.” (Def.

Resp. to Pl. SOF ¶ 59).
The Secret Plan to Deny the Sunshine Law Requests
60.

On July 21, 2016—while Mr. Rhodes and Ms. Loethen were corresponding

about search methodologies that would comply with the Sunshine Law—Dr. Wambuguh
spoke with Garland Land, the former State Registrar, about Ms. Ganz’s requests. (Def.
Resp. to Pl. SOF ¶ 60).
61.

Later the same day, Mr. Land wrote Dr. Wambuguh and told her that DHSS

should deny Ms. Ganz’s requests, and “require them to take you to court,” and to use the
delay caused by the lawsuit to get the Legislature to change the law.

(Def. Resp. to Pl. SOF ¶ 61) (highlighting added).
62.

The next day, Dr. Wambuguh wrote Mr. Land and advised him that she

would “share … this useful advice … with my colleagues.” (Def. Resp. to Pl. SOF ¶ 62).
DHSS Executes the Secret Plan – Part 1
63.

Exactly two weeks later, on August 9, 2016, Ms. Loethen wrote Mr. Rhodes

and—rather than providing information as to whether it was possible to run just two
searches, as she stated she would do in her August 1st e-mail—advised him that DHSS was
denying both Ms. Ganz’s request for birth listings and her request for death listings, and
was refusing to provide either listing, stating that “the department has opted to exercise the

15
32469802v.1

 discretion granted in Section 193.245(1), RSMo, to decline these requests.” (Def. Resp. to
Pl. SOF ¶ 63).
64.

The decision to deny Ms. Ganz’s requests had been made the day before,

on August 8, 2016, exactly two weeks after Mr. Land’s e-mail advising DHSS to “not
honor the request [and] require them to take you to court.” (Def. Resp. to Pl. SOF ¶ 64).
65.

The decision to deny Ms. Ganz’s requests came nearly six months after Ms.

Ganz made her requests. (Def. Resp. to Pl. SOF ¶ 65).
DHSS Executes the Secret Plan – Part 2
66.

On August 22, 2016, less than two weeks after DHSS denied Ms. Ganz’s

requests, Mr. Ward—who previously had sought information from his contacts at other
health departments about Reclaim the Records—e-mailed his contacts and advised them
that DHSS had denied Ms. Ganz’s requests. (Def. Resp. to Pl. SOF ¶ 66).
67.

He also advised them that not only had DHSS denied Ms. Ganz’s request,

but that DHSS had also “submitted a legislative request to rescind the particular statute.”
(Def. Resp. to Pl. SOF ¶ 67).
68.

Mr. Ward then wrote: “I’m hoping that’s the end of it.” (Def. Resp. to Pl.

SOF ¶ 68).
Ms. Ganz’s Counsel Responds to the Denial
69.

But that was not the end of it, because on August 24, 2016, Mr. Rhodes sent

Ms. Loethen an 11-page letter advising her that (a) DHSS’ reversal of its position was
contrary to the Missouri Sunshine Law, and (b) Ms. Ganz intended to pursue litigation—
and to seek penalties and attorneys’ fees for DHSS’ purposeful violation of the Sunshine
Law—unless DHSS provided the requested records at actual cost. (Def. Resp. to Pl. SOF
¶ 69).
16
32469802v.1

 70.

Ms. Loethen never responded to Mr. Rhodes’ letter. (Def. Resp. to Pl. SOF

¶ 70).
DHSS Executes the Secret Plan – Part 2 (Continued)
71.

As stated in Mr. Ward’s e-mail, DHSS did in fact put forward a request to

the Missouri Legislature to remove the provision from Missouri law providing that birth
and death listings are available upon request. (Def. Resp. to Pl. SOF ¶ 71).
72.

Specifically, DHSS lobbied to have the Missouri Legislature remove the

provision in Section 193.245 that provides that birth and death listings are available upon
request. (Def. Resp. to Pl. SOF ¶ 72).
73.

Despite DHSS’ efforts, Section 193.245.1 has not been amended since

DHSS denied Plaintiffs’ Sunshine Law requests. (Def. Resp. to Pl. SOF ¶ 73).
74.

As late as July 2018, DHSS was considering renewing its request to change

the law. (Def. Resp. to Pl. SOF ¶ 74).
75.

DHSS’ attempt to change Missouri law through the legislative process to

close birth and death listings while this lawsuit has been pending is precisely what Mr.
Land advised DHSS to do: “By delaying this you might file a regulation or get the Legislature to clarify the intent of the law.” (Def. Resp. to Pl. SOF ¶ 75).
DHSS’ Past Practice Was to Regularly Provide Birth and Death Listings
76.

Before DHSS denied Ms. Ganz’s requests, it regularly satisfied requests for

birth and death listings for one day. (Def. Resp. to Pl. SOF ¶ 76).
77.

In fact, in just the three years before Ms. Ganz made her requests, DHSS

provided somewhere between 50 and 100 such listings to various requestors. (Def. Resp.
to Pl. SOF ¶ 77).

17
32469802v.1

 78.

These listings included the first name, last name, and date of birth of every

person who was born or died in Missouri on a given date. (Def. Resp. to Pl. SOF ¶ 78).
79.

If the request asked for more than one date, the listing would provide the

same information for each date of the request. (Def. Resp. to Pl. SOF ¶ 79).
80.

DHSS placed no restrictions on the use of these listings. (Def. Resp. to Pl.

SOF ¶ 80).
DHSS Has Stopped Providing Birth and Death Listings
81.

Since DHSS denied Ms. Ganz’s requests, it has stopped providing birth and

death listings, and sought an amendment to the Missouri statutes to close such listings.
(Def. Resp. to Pl. SOF ¶ 81).
DHSS’ Shifting Hourly Rate Charges
82.

When Ms. Hollis, from the DHSS Office of General Counsel, first acknowl-

edged receipt of Ms. Ganz’s Sunshine Law requests on February 17, 2016, she advised that
“the Department may charge $21.38 per hour for research.”

(Def. Resp. to Pl. SOF ¶ 82) (highlighting added).
83.

On May 27, 2016, Ms. Loethen, DHSS’ General Counsel, wrote Ms. Ganz

as stated: “The department’s current hourly rate for staff time is $20.85.”

18
32469802v.1

 (Def. Resp. to Pl. SOF ¶ 83) (highlighting added).
84.

However, when Ms. Hollis sent the first cost estimate of $1.49 million on

June 24, 2016, it set forth charges of “42.50/hour.”

(Def. Resp. to Pl. SOF ¶ 84) (highlighting added).
85.

Moreover, as can be seen above, Ms. Hollis expressly stated in her e-mail

that the $42.50 hourly charge was prepared pursuant to Chapter 610 of the Missouri Statutes—just as Ms. Loethen had stated in her e-mail of May 27, 2016. (Def. Resp. to Pl. SOF
¶ 85).
86.

On June 28, 2016, Ms. Loethen sent a revised cost estimate of $1.46 million,

in which she changed the hourly rate from $42.50 to “$41.78/hour.” (Def. Resp. to Pl. SOF
¶ 86).
87.

Ms. Loethen based the difference on the fact “the department realized an

error in the calculation of the hourly rate.” (Def. Resp. to Pl. SOF ¶ 87).
19
32469802v.1

 88.

When Ms. Loethen provided the cost of estimate of $5,174.04 on August 1,

2016, it was based on the same “$41.78 hour” rate used in her June 28, 2016, cost estimate
of $1.46 million.

(Def. Resp. to Pl. SOF ¶ 88) (highlighting added).
DHSS miscalculated the “average hourly rate of pay”
89.

The Missouri Sunshine Law provides that a public governmental agency

may charge for staff time to produce records maintained on computer facilities. Mo. Rev.
Stat. § 610.026.1(2). (Def. Resp. to Pl. SOF ¶ 89).
90.

Specifically, Section 610.026 provides as follows:

Fees for providing access to public records maintained on computer facilities … shall include only the cost of copies, staff time, which shall not
exceed the average hourly rate of pay for staff of the public governmental
body required for making copies and programming, if necessary, and the
cost of the disk, tape, or other medium used for the duplication.
Mo. Rev. Stat. § 610.026.1(2) (emphasis added); (Def. Resp. to Pl. SOF ¶ 90).
91.

The work to be performed responding to Ms. Ganz’s request was work that

would have been performed by one or more DHSS Research Analysts. (Def. Resp. to Pl.
SOF ¶ 91).
92.

Specifically, the work would have been performed by persons with the job

title Research Analyst III. (Def. Resp. to Pl. SOF ¶ 92).
93.

Omitted.

94.

Omitted.

95.

The average hourly rate of pay for person with the job title of Research

Analyst III in 2016 was $20.65. (Def. Resp. to Pl. SOF ¶ 95).
20
32469802v.1

 96.

When DHSS provided its fee estimates to Ms. Ganz, it began with an hourly

rate of pay of $22.61 per hour, which was mistakenly calculated by taking the “average”
and the “maximum” rate of pay of the highest paid class and averaging those numbers.
(Def. Resp. to Pl. SOF ¶ 96).
DHSS’ hourly rate calculations include “additions”
97.

Additionally, when DHSS provided its fee estimates to Ms. Ganz it added

amounts in addition to the hourly rate of $22.61. (Def. Resp. to Pl. SOF ¶ 97).
98.

To begin with, DHSS took the “direct PS [i.e. Pay Scale] rate” of $22.61

and then added $10.70 an hour in “fringe benefits.” (Def. Resp. to Pl. SOF ¶ 98).
99.

This fringe benefit factor is a “generalized rate” for every employee in

DHSS. (Def. Resp. to Pl. SOF ¶ 99).
100.

DHSS then took the sum of (a) the hourly rate of staff pay and (b) the fringe

benefit factor, and multiplied the sum of those two numbers by an “indirect allocation” of
general administrative expense factor of 20.9%, or another $6.96 an hour. (Def. Resp. to
Pl. SOF ¶ 100).
101.

DHSS then added to that number a “network” charge of $.93 per hour, and

a “server” charge of $0.58 per hour. (Def. Resp. to Pl. SOF ¶ 101).
102.

The total of these charges equals the $41.78 hourly charge that DHSS ex-

pected Ms. Ganz to pay.
Actual hourly rate
Fringe benefits
Indirect allocation
Network charge
Server charge
Total

$22.61
$10.70
$6.96
$0.93
$0.58
$41.78

(Def. Resp. to Pl. SOF ¶ 102).
21
32469802v.1

 103.

As can be seen, the additions to the actual hourly rate nearly doubled the

hourly charge DHSS expected Ms. Ganz to pay. (Def. Resp. to Pl. SOF ¶ 103).
The Actual Cost of Producing the Listings
104.

Ms. Loethen’s August 1, 2016, cost estimate of $5,174.04 was based on

searches for one year at a time. (Def. Resp. to Pl. SOF ¶ 104).
105.

Specifically, the estimate for the birth listings was based on 96 separate

searches (for each of the years 1920 through 2015) at an estimated time per search of .75
hours, while the estimate of the death listings was based on 48 separate searches (for each
of the years 1968 through 2015) at an estimated time per search of 1.08 hours. (Def. Resp.
to Pl. SOF ¶ 105).
106.

Omitted.

107.

Omitted.

108.

Omitted.

109.

Omitted.

110.

Omitted.

111.

Omitted.

112.

If Ms. Loethen had used the actual “average hourly rate of pay for staff” of

$20.65 for a Research Analyst III, the total cost of providing the birth listings by performing 96 separate yearly searches at .75 hours each would have been $1,486.80 (72 hours x
$20.65 an hour), while the total cost of providing the death listings by performing 48 separate yearly searches at 1.08 hours would have been $1,070.50 (51.84 hours x $20.65 an
hour). (Def. Resp. to Pl. SOF ¶ 112).
113.

Based on these calculations, the combined total for both listings would have

been $2,557.30, or less than half of DHSS’ last estimate of $5,174.04—or roughly three22
32469802v.1

 tenths of one percent of DHSS’ original $1.49 million estimate. (Def. Resp. to Pl. SOF ¶
113).
Conclusions of Law
Plaintiffs allege that DHSS violated the Sunshine Law in two ways. First, Plaintiffs
allege that DHSS violated the Sunshine Law by initially charging nearly $1.5 million for
the requested records, and by later charging more than $5,000 for the records—which was
still more than double the allowable cost under the Sunshine Law. Second, Plaintiffs allege
that DHSS violated the Sunshine Law by later denying Plaintiffs’ requests outright, following the two cost estimates and six months after the initial request.
Because Plaintiffs’ claims of excessive cost would be moot if DHSS had validly
denied Plaintiffs’ requests, the Court will first address whether DHSS properly denied
Plaintiffs’ requests.
I.

The requested listings are “public records” under the Sunshine Law
The Missouri Sunshine Law states simply: “Except as otherwise provided by law,

… all public records of public governmental bodies shall be open to the public for inspection and copying.” Mo. Rev. Stat. § 610.011.2 (emphasis added). As such, Sunshine Law
issues are settled by the answers to three questions: (1) is the requested document a “public
record,” (2) “of [a] public governmental bod[y],” and (3) is the record “otherwise [closed]
by law.”
The Sunshine Law defines a “public record” as “any record, whether written or
electronically stored, retained by or of any public governmental body.” Mo. Rev. Stat.
§ 610.010(6). DHSS does not dispute that it maintains listings of persons who were born
and died in Missouri pursuant to its statutory duties.

23
32469802v.1

 Specifically, the Missouri statutes define “vital statistics” as “data derived from
certificates and reports of birth [and] death” and provide that “[t]he [D]epartment [of
Health and Senior Services] shall establish an office which shall install, maintain and operate the only system of vital statistics throughout the state. The office shall provide for the
preservation of its official records.” Mo. Rev. Stat. §§ 193.015(14) & 193.025.
The Missouri Sunshine Law defines a “public governmental body” as a “department or division of the state.” Mo. Rev. Stat. § 610.010(4)(c). The Missouri Department
of Health and Senior Services is, by definition, a “department” of the State of Missouri.
See Mo. Rev. Stat. § 192.005 (“There is hereby created and established as a department of
state government the ‘Department of Health and Senior Services.’”).
As such, there is no question that the requested birth and death listings are “public
records” under the Sunshine Law. DHSS does not contend otherwise.
II.

Does a statute “specifically prohibit” disclosure of the requested public records?
Under the Missouri Sunshine Law, public records are open to the public “except as

otherwise provided by law.” Mo. Rev. Stat. § 610.011.2. The “‘except as otherwise provided by law’ provision in [section 610.011.2] ‘means except as otherwise provided by
statute.’” Pulitzer Pub. Co. v. Missouri State Employees’ Ret. Sys., 927 S.W.2d 477, 481
(Mo. App. 1996); see State ex rel. Goodman v. St. Louis Bd. of Police Comm’rs, 181
S.W.3d 156, 159 (Mo. App. 2005) (“In other words, public records are open to the public
unless a statute protects their disclosure.”).
Further, Section 610.011 provides that “[i]t is the public policy of this state that …
records … of public governmental bodies be open to the public” and that “exceptions [be]
strictly construed to promote this public policy.” Mo. Rev. Stat. § 610.011.1 (emphasis
24
32469802v.1

 added); Scroggins v. Missouri Dep’t of Soc. Servs., 227 S.W.3d 498, 500 (Mo. App. 2007)
(“Statutory exceptions allowing records to be closed are to be strictly construed.”).
Taken together, these two provisions mean that records are therefore open for inspection under the Sunshine Law unless another statute “specifically prohibit[s] public
inspection” of them. Oregon County R-IV School Dist. v. LeMon, 739 S.W.2d 553, 557
(Mo. App. 1987) (emphasis added). To hold otherwise, explained the court, “would not be
in keeping with the legislative intent” of the Sunshine Law, which “‘speak[s] loudly and
clearly … that the records of [a public governmental] body … must be open.’” Id. at 55960 (quoting Cohen v. Poelker, 520 S.W.2d 50, 52 (Mo. banc 1975)).
In LeMon, the plaintiff, Bob LeMon, made a Missouri Sunshine Law request to the
Oregon County School District for a list of students’ names, addresses and telephone numbers. The school district brought an action for a declaratory judgment as to whether the
records were closed records under the Sunshine Law because, among other reasons, they
contained “personally identifiable information” protected by the federal Family Educational Rights and Privacy Act (“FERPA”).
Specifically, the school district asserted that because FERPA prohibited educational institutions from disclosing “personally identifiable information” (which the parties
agreed included the students’ names, addresses and phone numbers) without parental consent, the records were closed records under the Sunshine Law. LeMon, however, pointed
out that FERPA provided that “[a]n educational agency or institution may disclose personally identifiable information from the education records of a student [for] directory [purposes].” 34 CFR § 99.37 (1987) (emphasis added).
After the circuit court ruled the listings were open records under the Sunshine Law
because FERPA did not close the listings, the school district appealed. The school district
25
32469802v.1

 argued that because FERPA provided that the school district “may disclose” information
for use in a school directory, the district was not required to provide that information under
the Sunshine Law. Specifically, the school district argued:
Federal law … provides that a school district may release directory information to the public .... The federal regulations ... make clear that a school
district may disclose directory information …. The federal law and the federal regulations do not require disclosure of directory information. There is
no logic to the Circuit Court’s rationale that because federal law permits
disclosure, state law requires disclosure.
739 S.W.2d at 558-59 (emphasis in original).
The Court of Appeals rejected the school district’s argument, writing: “There is no
merit in that argument.” Id. at 559. In explaining its ruling, the court first noted that under
the Sunshine Law public records are open to the public, unless some law “specifically prohibit[s] public inspection” of the records. Id. at 557. Specifically, the court quoted the applicable provision of the Sunshine Law, which provided that “except as otherwise provided
by law, … public records shall be open to the public for inspection and duplication.” Id. at
555 (quoting Mo. Rev. Stat. § 610.015).
The court then examined FERPA and found that not only does it not specifically
prohibit disclosure of directory information, “[t]he federal statute, and the regulations implementing it, permit disclosure of the requested information” for directory purposes. Id.
at 559. Specifically, the court cited the applicable provision of the FERPA regulations,
which provided that “[a]n educational agency or institution may disclose personally identifiable information from the education records of a student [for] directory [purposes].” 34
CFR § 99.37 (1987) (emphasis added).

26
32469802v.1

 Based on these two provisions, the court found that “the trial court properly required disclosure because of the general mandate of [the Sunshine Law] and because
[FERPA] did not bar disclosure.” Id.
III.

Section 193.245 does not “specifically prohibit” disclosure of the listings
The only basis for which DHSS claims it could deny Ms. Ganz’s requests for the

requested birth and death listings is Section 193.245 of the Missouri Revised Statutes. The
question before this Court, therefore, is whether Section 193.245 “specifically prohibits”
the disclosure of birth and death listings.
Section 193.245 provides as follows:
It shall be unlawful for any person to permit inspection of, or to disclose
information contained in, vital records or to copy or issue a copy of all or
part of any such record except as authorized by this law and by regulation
or by order of a court of competent jurisdiction or in the following situations:
(1)

A listing of persons who are born or who die on a particular date
may be disclosed upon request, but no information from the record
other than the name and the date of such birth or death shall be disclosed;

Mo. Rev. Stat. § 193.245(1) (emphasis added).
As can be seen, Section 193.245(1) states on its face that “[a] listing of persons who
are born or who die on a particular date may be disclosed upon request.” As such, it is
obvious from the plain meaning of the words used in the statute that it does not “specifically
prohibit” disclosure of birth and death lists. See Pulitzer Pub. Co. v. Missouri State Employees’ Ret. Sys., 927 S.W.2d 477, 482 (Mo. App. 1996) (“words used in the statute are
to be considered in their plain and ordinary meaning”).
This conclusion is well-supported by the Court of Appeal’s decision in LeMon,
where the court was faced with the identical question posed by DHSS in this case: does a

27
32469802v.1

 law which provides that the government “may disclose” certain public records “specifically
prohibit” disclosure of those same records.
In LeMon, the applicable provision in FERPA provided as follows:
“An educational agency or institution may disclose personally identifiable
information from the education records of a student [for] directory [purposes].”
39 CFR § 99.37 (1987) (emphasis added).
And Section 193.245, which DHSS relies on, provides:
“A listing of persons who are born or who die on a particular date may be
disclosed upon request, but no information from the record other than the
name and the date of such birth or death shall be disclosed.”
Mo. Rev. Stat. § 193.245(1) (emphasis added).
In both cases, the law does not “specifically prohibit” disclosure of the information,
but instead expressly provides that the government “may disclose” the requested information, under specified parameters or limitations (which are applicable here, i.e., the requests seek only the name and date of each person who was born or who died in Missouri
during the relevant time).
Even under DHSS’ interpretation of Section 193.245(1), disclosure of birth and
death listings are not “specifically prohibit[ed]” by the law—they are merely “discretion[ary].” Specifically, DHSS asserts in its denial letter that Section 193.245(1) gives it
“discretion” to grant—or deny—a request for birth and death listings and that “the department has opted to exercise the discretion granted in Section 193.245(1), RSMo, to decline these requests.” (Def. Resp. to Pl. SOF ¶ 63) (emphasis added). Because DHSS concedes Section 193.245 gives it “discretion” to release the listing, it plainly does not “specifically prohibit” its disclosure.

28
32469802v.1

 Moreover, DHSS admits that many years before it denied Ms. Ganz’s requests that
it had “regularly” disclosed birth and death listings. Specifically, in the three years before
Ms. Ganz made her requests, DHSS provided birth and death listings in response to between 50 to 100 different requests. (Def. Resp. to Pl. SOF ¶ 77).
As such, DHSS concedes that Section 193.245(1) does not “specifically prohibit”
disclosure of the request listings. To find otherwise, i.e. that Section 193.245 specifically
prohibits disclosure of the birth and death listings against the plain language of the statute,
would effectively give “too much scope” to Section 193.245 and “insufficient scope” to
Section 610.011, which requires that public records shall be open to the public for inspection and duplication unless their production is “specifically prohibited.” Oregon County RIV School Dist. v. LeMon, 739 S.W.2d 553, 556 (Mo. App. 1987).
Because disclosure of birth and death listings under Section 193.245 is not specifically prohibited, the Court finds the listings are not closed records under the Missouri Sunshine Law. Accordingly, the Court sustains Plaintiffs’ motion for summary judgment as to
Count II of Plaintiffs’ Petition.1
IV.

DHSS violated the Sunshine Law by charging excessive fees

The Court further finds that DHSS violated the Missouri Sunshine Law not just by
denying Ms. Ganz’s requests, but—before that—by demanding excessive and unlawful
fees from Ms. Ganz to provide the requested public records. Those fees were improper for
two reasons. First, DHSS’ initial charge of $1.46 million was plainly excessive, as DHSS
itself effectively admitted when it dropped its charge to $5,174.04. Second, because the

1

Because Plaintiffs will receive the relief they need by the grant of summary judgment in their favor as to Count II, the Court dismisses Count I as moot. See Antioch Cmty.
Church v. Bd. of Zoning Adjustment of City of Kansas City, 543 S.W.3d 28, 42 (Mo. banc
2018).
29
32469802v.1

 hourly rate which DHSS used in calculating its later charge was more than double the allowable hourly rate, the $5,174.04 charge was more than twice the allowable charge under
the Sunshine Law.
A. DHSS’ original charge of $1.49 million violated the Sunshine Law
DHSS does not dispute that its original charge of $1.49 million was excessive; nor
could it, given that it later charged just over $5,000 to provide copies of the same listings.
Instead, DHSS argues that its admittedly excessive charge did not violate the Sunshine
Law because it was only an “estimate,” and that Plaintiffs never actually paid that amount.
The Court finds DHSS’s argument unavailing.
Last year, the Circuit Court in Boone County ruled that where a governmental body
demands an excessive charge to produce public records, it has violated the Sunshine Law.
See ARME d/b/a Beagle Freedom Project v. Curators of the University of Missouri, No.
16BA-CV01710, Judgment (Cir. Ct. Boone County, Missouri, Nov. 8, 2019). In that case,
the Beagle Freedom Project made a Sunshine Law request to the University of Missouri
for records concerning the university’s use of dogs and cats in research.
The university responded by providing a cost estimate of $82,222. The university
demanded payment of this amount before it would produce the documents. Later, the university acknowledged that its original fee estimate was excessive, and provided a revised
estimate of $8,950.
The court found the university was not relieved of liability merely because it called
the $82,222 charge an “estimate.” As the court explained, “[a]n estimate, as opposed to an
exact number, does not relieve government from doing due diligence to confirm the basis
of an estimate, particularly when government demands pre-payment before producing public records and particularly when the estimate approaches $100,000.” Id. at 21. “While an
30
32469802v.1

 estimate is inherently inexact, there is nonetheless an obligation on the part of government
to make a diligent effort to accurately calculate costs to avoid creating a roadblock to disclosure.” Id. “When hours and costs are not adequately questioned, the result can effectively stymie a taxpayer from getting government records.” (Id. at 21-22).
The court concluded that the excessive cost estimate violated the Sunshine Law,
because “[t]he cost estimate in this case 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 lowest cost embodied in the Open Records
Act.” Id. at 18, 26.
The Court finds this analysis persuasive. Moreover, if an “estimate [that] approaches $100,000” is an effective denial, an “estimate [that] approaches” $1.5 million is
plainly a denial. No reasonable person could be expected to pay that amount.
Accordingly, the Court finds DHSS violated the Sunshine Law when it demanded
that DHSS pay $1.49 million for the requested listings.
B. DHSS’ later charge of $5,174.04 violated the Sunshine Law
The Missouri Sunshine Law provides that a governmental agency may charge for
staff time to produce records maintained on computer facilities. Specifically, Section
610.026 provides as follows:
Fees for providing access to public records maintained on computer facilities … shall include only the cost of copies, staff time, which shall not
exceed the average hourly rate of pay for staff of the public governmental body required for making copies and programming, if necessary, and
the cost of the disk, tape, or other medium used for the duplication.
Mo. Rev. Stat. § 610.026.1(2) (emphasis added).
There are two problems with DHSS’ hourly rate calculation. First, DHSS used the
wrong “average hourly rate of pay for staff.” Specifically, in arriving at its $5,174.04
31
32469802v.1

 charge, DHSS used an hourly rate of $22.61, rather than the actual “average hourly rate”
of $20.65 for a person in the Research Analyst III job classification.
This appears to be the result of a mathematical error, and not an intentional error.
Moreover, while DHSS now concedes the hourly rate it used in its calculation was wrong,
it was nevertheless within the approximate range of hourly rates DHSS uses when it provides estimates of the cost of responding to Sunshine Law requests. For example, in its
initial response to Plaintiffs’ requests, DHSS stated that it “may charge $21.38 per hour for
research.” And in a later response which DHSS sent on May 27, 2016, it quoted an hourly
rate of $20.85.
Second, and much more significant, despite the clear language of the statute that
DHSS can “only” charge “the hourly rate of pay for staff of the public governmental body,”
DHSS charged nearly double that amount. Specifically, DHSS’ own calculations show that
it improperly made several additions to the actual “the hourly rate of pay,” as shown below:
Actual hourly rate
Fringe benefits
Indirect allocation
Network charge
Server charge
Total

$22.61
$10.70
$6.96
$0.93
$0.58
$41.78

(Def. Resp. to Pl. SOF ¶¶ 97-103). These charges are plainly improper.
“The primary rule of statutory interpretation is to effectuate legislative intent
through reference to the plain and ordinary meaning of the statutory language.” Bateman
v. Rinehart, 391 S.W.3d 441, 446 (Mo. banc 2013) (citing State v. Graham, 204 S.W.3d
655, 656 (Mo. banc 2006)). Here, the terms of the statute are clear.
First, it says that the fees charged “shall include only” the charges listed. The term
“only” has a clear meaning—it means DHSS cannot add charges that are not included in
32
32469802v.1

 the statute. See R.L. Polk & Co. v. Missouri Dep’t of Revenue, 309 S.W.3d 881, 886 (Mo.
App. 2010) (“Section 610.026.1(2) specifically limits the fee for 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.”).
Second, the statute says DHSS may charge “staff time, which shall not exceed the
average hourly rate of pay for staff of the public governmental body required for making
copies and programming.” Again, these terms have clear meanings. To begin with, the term
“pay” means “something paid for a purpose and especially as a salary or wage.”2 In accord
with that definition, the term “rate of pay” means “the amount of money workers are paid
per hour, week, etc.”3 As such, the amount of money workers are paid is their hourly wage.
In this case, that wage is reflected in DHSS’ own workpapers as the “direct PS rate,” where
“PS” stands for “Pay Scale.” (Def. Resp. to Pl. SOF ¶ 98).
The term “fringe benefit,” on the other hand, has a completely different meaning.
Specifically, a “fringe benefit” is “an employment benefit (such as a pension or a paid
holiday) granted by an employer that has a monetary value but does not affect basic wage
rates.”4 (Emphasis added). As such, fringe benefits are not included in a “rate of pay.”
This construction of the term “rate” is supported by the Court of Appeals decision
in Savannah R-III Sch. Dist. v. Pub. Sch. Ret. Sys. of Missouri, 912 S.W.2d 574 (Mo. App.
1995), where the court was faced with the question whether the term “salary rate” included
fringe benefits. In finding that the term did not, the court explained, “[f]ringe benefits, such
as health insurance, are ‘[s]ide, non-wage benefits which accompany or are in addition to

2

https://www.merriam-webster.com/dictionary/pay.

3

https://www.merriam-webster.com/dictionary/rate%20of%20pay.

4

https://www.merriam-webster.com/dictionary/fringe%20benefit.
33

32469802v.1

 a person’s employment such as paid insurance, recreational facilities, sick leave, profitsharing plans, paid holidays and vacations, etc. Such benefits are in addition to regular
salary or wages[.]’” Id. at 576 (quoting BLACK’S LAW DICTIONARY 667–68 (6th ed. 1990)).
Accordingly, the court held “fringe benefits are not properly included in the term ‘salary
rate.’” Id.
The same is true here, i.e., fringe benefits are not properly included in the term “rate
of pay.”
Similarly, the “indirect allocation” which DHSS has added to the hourly rate, along
with the “network charge” and “server charge” are not, under any meaning of the term “rate
of pay,” properly included.
Accordingly, the Court finds that DHSS violated the Sunshine Law when it charged
Ms. Ganz $41.78 an hour, when the only allowable charge was the “average hourly rate of
pay for staff of the public governmental body required for making copies and programming,” which DHSS concedes is $20.65.
C. The allowable charges are $2,557.30
Based on this information, it is possible to calculate the cost of providing the two
listings. Specifically, using a one-year search period, the number of hours needed to perform the resulting 96 searches for the birth listings (1920-2015) would have been 72 hours
(96 searches x .75 hours per search). (Def. Resp. to Pl. SOF ¶ 112). Similarly, using the
same one-year search period, the number of hours needed to perform the resulting 48
searches for the birth listings (1968-2015) would have been 51.84 hours (48 searches x
1.08 hours per search). (Def. Resp. to Pl. SOF ¶ 112).
Using these hours—and the actual “average hourly rate of pay for staff” of
$20.65—the total cost of providing the birth listings would be $1,486.80 (72 hours x $20.65
34
32469802v.1

 an hour). (Def. Resp. to Pl. SOF ¶ 112). And the cost of providing the death listings would
be $1,070.50 (51.85 hours x $20.65 an hour). (Def. Resp. to Pl. SOF ¶ 112).
Accordingly, the combined total for both listings would be $2,557.30, or less than
half of DHSS’ last estimate of $5,174.04—or roughly three-tenths of one percent of DHSS’
original $1.49 million estimate.
The Court finds that summary judgment is therefore appropriate on Count III of
Ms. Ganz’s Petition.
V.

DHSS Knowingly and Purposely Violated the Sunshine Law

A violation of the Sunshine Law does not itself require knowledge that a violation
is occurring. See Laut v. City of Arnold, 491 S.W.3d 191, 199 (Mo. 2016). However, imposition of a penalty—and an award of attorney’s fees to the prevailing party—does. Id.
Specifically, the Sunshine Law provides that a defendant who “knowingly” violates
the law “shall” pay a civil penalty of up to $1,000, and “may” be ordered to pay the plaintiff’s attorney’s fees and costs. See Mo. Rev. Stat. § 610.027.3. It further provides that a
defendant who “purposely” violates the law “shall” pay a fine of up to $5,000, and “shall”
pay the plaintiff’s attorney’s fees and costs. See Mo. Rev. Stat. § 610.027.4. “What constitutes a knowing or purposeful violation of the Sunshine Law is a question of law.” ACLU
of Missouri Found. v. Missouri Dep’t of Corr., 504 S.W.3d 150, 153 (Mo. App. 2016).
A.

DHSS committed knowing violations of the Sunshine Law

“A knowing violation of the Sunshine Law occurs when a public governmental
body has actual knowledge that its conduct violates a statutory provision.” Petruska v. City
of Kinloch, 559 S.W.3d 386, 389 (Mo. App. 2018) (citing Laut v. City of Arnold, 491
S.W.3d 191, 198 (Mo. banc 2016)).

35
32469802v.1

 Thus, the Court of Appeals regularly affirms findings of a knowing violation when
the evidence showed the government withheld documents it knew were not exempt under
the Sunshine Law—such as by belatedly producing the requested documents. See, e.g., Am.
Civil Liberties Union of Missouri Found. v. Missouri Dep’t of Corr., 504 S.W.3d 150, 156
(Mo. App. 2016) (DOC produced documents two days before trial); Chasnoff v. Mokwa,
466 S.W.3d 571, 584 (Mo. App. 2015) (police department produced documents in related
litigation).
1.

DHSS committed knowing violations regarding the hourly rate

Here, the Court finds the uncontradicted evidence establishes that at the time DHSS
quoted Plaintiffs an hourly rate of $41.78 it knew that rate was more than double the actual
allowable hourly rate of $20.65. This conclusion is compelled by the fact that in its initial
response to Plaintiffs’ requests, DHSS stated that it “may charge $21.38 per hour for research.” (Def. Resp. to Pl. SOF ¶ 19). And in a later response which DHSS sent on May
27, 2016, it quoted a similar rate, writing: “The department’s currently hourly rate for staff
time is $20.85 per hour.” (Def. Resp. to Pl. SOF ¶ 83).
Despite this clear evidence of its knowledge of the allowable hourly rate, DHSS
used a rate of $41.78 an hour—more than double the allowable rate of $20.65 an hour (and
double the hourly rates of $21.38 and $20.65 which DHSS quoted in its prior responses to
Plaintiff).
Accordingly, the Court finds that DHSS knowingly violated the Sunshine Law
when it knowingly charged Plaintiffs an hourly rate that was more than double the rate
which DHSS knew was allowable under the Sunshine Law.

36
32469802v.1

 2.

Knowing violations regarding denial of Plaintiffs’ Sunshine Law requests

The Court also finds that DHSS committed a knowing violation of the Sunshine
Law when—six months after it received Plaintiffs’ requests, and after it had provided three
separate fee estimates for producing responsive records—DHSS denied Plaintiffs’ requests
for open records.
To begin with, there is no question that DHSS knew that Ms. Ganz’s requests fell
within the Sunshine Law. This conclusion is obvious from numerous actions DHSS—
through its Office of General Counsel—took in response to Ms. Ganz’s request. First,
Nikki Loethen, DHSS’ General Counsel, reviewed the two requests and directed Emily
Hollis (also in the DHSS Office of General Counsel) to “do the 3-day response” for each
request. It is obvious that Ms. Loethen’s reference to “the 3-day response” is to the Sunshine Law, which provides as follows: “Each request for access to a public record shall be
acted upon as soon as possible, but in no event later than the end of the third business day
following the date the request is received by the custodian of records of a public governmental body.” Mo. Rev. Stat. § 610.023.3.
Second, Ms. Hollis responded to Plaintiffs within the three-day-period set forth in
the Sunshine Law. Third, Ms. Loethen told Ms. Ganz that “[t]he department will charge
for staff time … as authorized by Chapter 610” which, of course, is the Missouri Sunshine
Law. (Def. Resp. to Pl. SOF ¶ 39). Fourth, when Ms. Hollis provided the cost estimate for
providing the requested records, she expressly stated that the estimate had been prepared
“[p]ursuant to your request and Section 610.026, RSMo”—the cost section of the Missouri
Sunshine Law. (Def. Resp. to Pl. SOF ¶ 44).

37
32469802v.1

 Despite this knowledge, when Ms. Loethen issued her letter denying Ms. Ganz’s
request she made no mention of the Sunshine Law—and, therefore, made no effort whatsoever to claim any legitimate exemption under the Sunshine Law. Instead, she cited Section 193.245 as the basis of her denial. But the timing of the denial—coming nearly six
months after the requests were made, and after three separate cost estimates—is evidence
of a knowing violation.
Perhaps the most apposite case in this regard is Am. Civil Liberties Union of Missouri Found. v. Missouri Dep’t of Corr., 504 S.W.3d 150 (Mo. App. 2016). There, the
ACLU made a Sunshine Law request for documents concerning persons who had applied
to be execution witnesses. After the Department of Corrections produced heavily-redacted
documents, the ACLU asked the Department to explain its authority for the redactions. In
response, the Department’s Deputy General Counsel cited Section 610.035 as authority for
redacting social security numbers, and Section 610.021(14) as authority for the remaining
redactions.
The ACLU sued, arguing Section 610.021(14) only protects “[r]ecords which are
protected from disclosure by law,” and DOC had failed to cite any “law” closing the information. In response to the lawsuit, DOC asserted that it redacted the information pursuant
to a “‘penumbral’ right [to privacy].” Id. at 153. The trial court, however, rejected this
argument, noting that established precedent had held that that the term “by law” only means
“by statute,” and not some ill-defined right of privacy. Id.
The trial court also noted that the Department’s “right to privacy” redaction
explanation appeared to the trial court to be nothing more than “an afterthought,” and consequently, the trial court placed no credibility in the Department's attempt to belatedly and purportedly rely upon this basis for redacting information—information that the trial court noted was “[t]he type
of information ... released by the Department of Revenue Driver's License
38
32469802v.1

 Bureau on a daily basis and is available online from Casenet to the general
public.
Id. Based on this finding, the trial court ruled that DOC had knowingly violated the Sunshine Law, and assessed a penalty against DOC, and awarded ACLU its attorney’s fees.
Id.
On appeal, the Court of Appeals affirmed the trial court’s judgment, finding that
substantial evidence existed to conclude that DOC’s Deputy General Counsel knew that
the Sunshine Law did not contain an exception for a “right of privacy,” and agreed with
the trial court that DOC’s assertion of such a right of privacy “was nothing more than an
‘afterthought’” used to justify DOC’s decision to withhold the information. Id. at 156.
The Court finds DHSS’ assertion that the requested birth and death listings are
closed by Section 193.245 to be a similar “afterthought” which is being used to justify a
decision which DHSS does not itself believe. This conclusion is supported by a host of
facts, beginning with DHSS’ failure to cite Section 193.245 until more than six months
after it first responded to Plaintiffs’ Sunshine Law requests.
Not only that, but DHSS provided not one, not two, but three separate cost estimates
to Plaintiffs for fulfilling Plaintiffs’ requests before reversing course and inexplicably
denying Plaintiffs’ requests. Moreover, these costs requests came not from some uninformed “underling” in the Department—instead, they came from the “Office of General
Counsel” and, in many cases, they came personally from the Department’s General Counsel, Ms. Loethen.
As such, just like the Department of Corrections (whose Deputy General Counsel
was responding to the request in the ACLU case), DHSS had its top lawyer responding to
Plaintiffs’ requests—and repeatedly stating that the Department was working to fulfill
39
32469802v.1

 those requests. As such, the Court has no trouble finding that DHSS knew the requested
records were not exempt under the Sunshine Law and its belated assertion that the requested listings are closed because of Section 193.245 is nothing but an “afterthought.”
B.

DHSS committed purposeful violations of the Sunshine Law

“A purposeful violation of the Sunshine Law occurs when there is ‘a conscious
design, intent, or plan to violate the law and do so with awareness of the probable consequences.”’ Strake v. Robinwood W. Cmty. Improvement Dist., 473 S.W.3d 642, 645 (Mo.
banc 2015) (quoting Spradlin v. City of Fulton, 982 S.W.2d 255, 262 (Mo. banc 1998); see
Wyrick v. Henry, 592 S.W.3d 47 (Mo. App. 2019) (affirming finding of purposeful violation).
The Supreme Court’s decision in Strake is instructive. There, the Robinwood Improvement District knew that a settlement agreement was a public record, but withheld it
because the agreement contained an express confidentiality clause. Because the evidence
showed that the district intentionally withheld the agreement—not because it was a closed
record, but for the ulterior reason of avoiding liability under the agreement’s confidentiality
clause—the Supreme Court found the district committed a purposeful violation.
“Robinwood’s decision to withhold the requested documents ... to avoid potential
contractual liability amounts to ‘purposely’ violating the Sunshine Law as part of a ‘conscious design, intent, or plan’ to violate the law ... ‘with awareness of the probable consequences.’” Id. at 199-200; see also Laut v. City of Arnold, 491 S.W.3d 191, 200 (Mo. banc
2016) (describing Strake’s holding as follows: “A purposeful violation involves proof of
intent to defy the law or achieve further some purpose by violating the law, such as Robinwood’s plan to avoid liability for breach of contract.”).

40
32469802v.1

 Here, the evidence that DHSS purposefully violated the Sunshine Law in denying
Plaintiffs’ requests for the ulterior purpose of making Plaintiffs sue DHSS while the Department sought to change Missouri law to close the requested birth and death listings is
both overwhelming and, most significantly, unrebutted. As such, summary judgment is
appropriate. See Malin v. Cole Cty. Prosecuting Attorney, 565 S.W.3d 748 (Mo. App.
2019) (affirming grant of summary judgment finding defendant purposefully violated the
Sunshine Law).
The secret plan advocated by Mr. Land, the former State Registrar—which DHSS
followed meticulously—is a textbook case of a purposeful violation of the Sunshine Law.
Mr. Land’s plan provided as follows:
I would not honor the request. I would require them to take you to court and
then bring in national geneological [sic] and vital records experts to testify
why making indexes is not good public policy. By delaying this you might
file a regulation or get the Legislature to clarify the intent of the law.
(Def. Resp. to Pl. SOF ¶ 61).
As can be seen, the secret plan is in two parts. First: “I would not honor the request
[and] would require them to take you to court.” As the Court of Appeals has said, this is
the paradigm of a purposeful violation of the Sunshine Law. “Chapter 610 would be a
hollow law if it permitted a custodian intentionally to forestall production of public records
until the requester sued.” Buckner v. Burnett, 908 S.W.2d 908, 911 (Mo. App. 1995). Accordingly, “[a] public official’s intentionally forestalling production of public records until
the requester sues would be a purposeful violation of Chapter 610 and would be subject to
a fine and reasonable attorney fees.” Id.
The second part of the plan is equally devious: “By delaying this you might … get
the Legislature to clarify the intent of the law.” In fact, DHSS took Mr. Land’s plan a step
41
32469802v.1

 further—it used the delay caused by the lawsuit to attempt to get the Missouri Legislature
to amend Missouri law to permanently close birth and death listings.
This secret plan represents an utter disdain for “the public policy of this state that
… records … of public governmental bodies be open to the public unless otherwise provided by law.” Mo. Rev. Stat. § 610.011.1. Governmental bodies are not allowed to deny
requests and then seek a law closing them; instead, they may only close records that are
closed by existing law.
It is also important to consider the chronology of events—specifically, the fact
DHSS’ denial came only after Ms. Ganz’s counsel had debunked the original $1.49 million
demands for fees, which was clearly intended to be a back-door denial of Ms. Ganz’s requests. And when DHSS refigured its cost estimate using information supplied by Ms.
Ganz’s counsel, it arrived at an estimate of approximately $5,000—still significantly higher
than the allowable charges, but in a range that Ms. Ganz might consider paying.
Faced with this reality, DHSS had to scramble to find a way to prevent the disclosure. It found that way when Mr. Land provided a literal roadmap to achieve DHSS’ illicit
goal: deny the request, make Ms. Ganz sue, and then use the delay caused by the resulting
lawsuit to go to the Missouri Legislature and try to get them to change the law to close
otherwise open records. It is hard to imagine a more purposeful plot.
Finally, Ms. Loethen was unquestionably put on notice of the fact DHSS was violating the Sunshine Law when she received an 11-page letter from Ms. Ganz’s counsel
detailing why DHSS’ sudden denial—nearly six months after it received Ms. Ganz’s requests—was a violation of the Sunshine Law. Unable to rebut that charge, Ms. Loethen
simply ignored the letter, causing Ms. Ganz to have to sue—which we now know was
DHSS’ secret plan after all.
42
32469802v.1

 Most significantly, DHSS makes no effort in its response to Plaintiffs’ motion for
summary judgment to rebut this evidence. Specifically, it admits the truth of each factual
allegation regarding this plan, and its suggestions in opposition to Plaintiffs’ motion make
no mention whatsoever of the issue of DHSS’ knowing and purposeful violations of the
Sunshine Law.
Accordingly, the Court finds that DHSS committed both knowing and purposeful
violations of the Sunshine Law and therefore grants Plaintiffs’ motion for summary judgment as to Count IV of Plaintiffs’ Petition.
C.

An award of penalties for DHSS’ knowing violations is warranted

The Sunshine Law provides that upon a showing the defendant committed a knowing violation, the defendant “shall be subject to a civil penalty in an amount up to one
thousand dollars.” Mo. Rev. Stat. § 610.027.3. The statute provides that in assessing the
exact amount of the penalty, the court should “tak[e] into account the size of the jurisdiction, the seriousness of the offense, and whether the public governmental body” has previously violated the Sunshine Law. Id.
The Court believes that in this case the most significant of these factors is “the size
of the jurisdiction,” which can best be described as large, given the fact DHSS has an annual budget of $1.4 billion. See https://health.mo.gov/about/pdf/dhss-overview.pdf. Accordingly, the Court has no hesitancy in assessing a penalty of $1,000 for each of DHSS’
knowing violations of the Sunshine Law.
In Malin v. Cole Cty. Prosecuting Attorney, 565 S.W.3d 748 (Mo. App. 2019), the
Court of Appeals recently held that “[t]he plain language of the statute connects the penalty
of up to five thousand dollars to the finding of a single purposeful violation of the Sunshine

43
32469802v.1

 Law.” Id. at 754 n. 3. Thus, where the defendant committed multiple purposeful violations,
the trial court was entitled to award up to $5,000 for each such violation. Id.
Given that the “plain language” of Sunshine Law’s provisions regarding knowing
and purposeful violations are identical as to an award of penalties, this Court believes that
Malin authorizes the award of up to a $1,000 penalty for each knowing violation of the
Sunshine Law.
Accordingly, the Court assesses a $1,000 penalty against DHSS for its knowing
violation of the Sunshine Law as to the excessive charges it levied in response to Plaintiffs’
request for birth listings, and a separate $1,000 penalty against DHSS for its knowing violation of the Sunshine Law as to the excessive charges it levied in response to Plaintiffs’
separate request for death listings.
The Court chooses not to assess a penalty against DHSS for its knowing violation
of the Sunshine Law for knowingly denying Plaintiffs’ requests because, as set forth below,
it assess penalties against DHSS for its purposeful violations of the Sunshine Law in this
regard.
D.

An award of penalties for DHSS’ purposeful violations is warranted

The Sunshine Law provides that upon a showing the defendant committed a purposeful violation, the defendant “shall be subject to a civil penalty in an amount up to five
thousand dollars.” Mo. Rev. Stat. § 610.027.4. The statute provides the same guidance as
to the factors to be considered in assessing the exact amount of the penalty as with a knowing violation. Id.
As to DHSS’ purposeful violations in improperly denying Plaintiffs’ requests,
along with the size of the jurisdiction, the Court believes the most significant factor is the
seriousness of the offense. DHSS’ scheme to purposefully violate the Sunshine Law was
44
32469802v.1

 blatant and, with the benefit of DHSS’ internal documents, obvious. The very “purpose of
the conduct[] was to violate the law.” Laut v. City of Arnold, 491 S.W.3d 191, 199 (Mo.
banc 2016).
As such, a serious penalty is required to deter others from committing similar acts.
“[T]he remedies of civil fines … were added to beef up and to deter violation[s]” of the
Sunshine Law. Kansas City Star Co. v. Shields, 771 S.W.2d 101, 104 (Mo. App. 1989)
(citing Cohen v. Poelker, 520 S.W.2d 50, 52–53 (Mo. banc 1975)). Additionally, as noted
above, given DHSS’ $1.4 billion annual budget, a penalty of $5,000 is far from excessive.
Accordingly, the Court assesses a $5,000 penalty for DHSS’ purposeful violation
of the Sunshine Law for improperly denying Plaintiffs’ request for birth records, and a
separate $5,000 penalty for DHSS’ purposeful violation of the Sunshine Law for improperly denying Plaintiffs’ request for death records.
E.

An award of Plaintiffs’ attorney’s fees is warranted

The Sunshine Law further provides that upon a showing of a knowing violation,
the Court “may” order the defendant to pay the plaintiff’s attorneys fees and costs. Mo.
Rev. Stat. § 610.027.3. It further provides that upon a showing of a purposeful violation,
the Court “shall” order the defendant to pay the plaintiff’s attorneys fees and costs. Mo.
Rev. Stat. § 610.027.4.
Here, the Court has found that DHSS committed both knowing and purposeful violations of the Sunshine Law. Accordingly, under either provision, the Court orders DHSS
to pay Plaintiffs’ attorneys fees and costs.
The Court believes that such an award is both required under subdivision (4), and
appropriate under subsection (3). Specifically, as noted above, the disparity between a

45
32469802v.1

 $5,000 penalty and DHSS’ annual budget of $1.4 billion is obvious. As such, an imposition of even the maximum penalty—which this Court has done—does little to foster the
purpose of Section 610.027, i.e., to punish DHSS for its wrongdoing and to deter others
from committing similar acts. See Kansas City Star Co. v. Shields, 771 S.W.2d 101, 104
(Mo. App. 1989).
Accordingly, the parties are directed to meet and confer in an attempt to agree
upon a reasonable attorney’s fees. If the parties can agree on such a fee, they are directed
to submit a proposed Judgment to the Court. If the parties are unable to agree on such a
fee, Plaintiffs are directed to file a formal motion requesting their fees and costs.
VI.

DHSS’ motion for leave to file a supplement response is denied

After briefing on Plaintiffs’ motion for summary judgment was completed, DHSS
filed a motion for leave to file supplemental summary judgment papers. Specifically,
DHSS sought leave to file “a supplement to its Response to Plaintiffs’ Motion for Summary
Judgment.” (Def. Mot. for Leave at 1). In support of its request, DHSS stated that its response to Plaintiffs’ summary judgment motion “does not accurately or fully represent
DHSS’ public policy concerns” with release of the requested birth and death listings. (Def.
Mot. for Leave at 2). DHSS noted that “[t]his issue … has not been directly addressed by
either party.” (Def. Mot. for Leave at 2).
The only reason DHSS gave for this failure to “accurately or fully represent DHSS’
public policy concerns” was to suggest that the Assistant Attorney General previously assigned to the case had failed to do so. Specifically, the motion states as follows: “At the
time this issue was discovered, cases involving Sunshine Law litigation were transferred
to a different section of the Attorney General’s Office. As a result, this case was recently
assigned to the undersigned counsel.” (Def. Mot. for Leave at 3).
46
32469802v.1

 On November 15, 2019—without having ever noticed up for hearing its motion for
leave—DHSS lodged with the Court “Defendant’s Proposed Supplemental Response to
Plaintiff’s Motion for Summary Judgment.” It included a Statement of Facts with 26 new
facts which had never previously been submitted to the Court. In addition, DHSS attached
16 separate exhibits to its proposed filing.
A.

Summary judgment procedure

Rule 74.04 provides that a party opposing a motion for summary judgment “shall
serve a response on all parties.” Mo. Sup. Ct. R. 744.04(c)(2). The rule further provides
that “[t]he response shall set forth each statement of fact in its original paragraph number
and immediately thereunder admit or deny each of movant’s factual statements.” Id. Finally, it provides that “[t]he response may also set forth additional material facts that remain in dispute, which shall be presented in consecutively numbered paragraphs and supported in the manner prescribed by Rule 74.04(c)(1).” Id.
Rule 74.04(c)(5) states succinctly: “No other papers with respect to the motion for
summary judgment shall be filed without leave of court.” The rationale behind this rule is
simple: “Otherwise, a summary judgment proceeding could become a blizzard of paper, as
it almost did here.” New Prime, Inc. v. Prof’l Logistics Mgmt. Co., 28 S.W.3d 898, 904
(Mo. App. 2000).
While courts may permit replies, oral argument, or even post-hearing memorandum, it is an entirely different inquiry when a party “wishes to … enlarge the record after
the motion and response have been filed.” Cross v. Drury Inns, Inc., 32 S.W.3d 632, 636
(Mo. App. 2000) “No case has sanctioned the filing of materials raising new factual issues,
grounds, or arguments.” Id.

47
32469802v.1

 That, however, is exactly what DHSS wanted to do, i.e., it wanted to submit additional evidence and affidavits relating to “DHSS’s policy considerations” to respond to
Plaintiffs’ otherwise fully-briefed summary judgment motion. Importantly, DHSS
acknowledges that these “additional material facts, supporting documents, and … explanation” relate to an issue that was “not directly addressed by either party” in the actual
summary judgment briefing. (Def. Mot. for Leave at 2 &4).
The Court finds that DHSS’ motion seeks to enlarge the record to introduce an
entirely new issue and new facts into the summary judgment that was not briefed by either
party. As a result, it is improper and would, as the Court of Appeals stated in its New Prime
decision, risk turning the summary judgment proceeding into “a blizzard of paper.” New
Prime, Inc. v. Prof’l Logistics Mgmt. Co., 28 S.W.3d 898, 904 (Mo. App. 2000).
B.

Rule 44.01 does not support DHSS’ request

In its motion, DHSS cites Rule 44.01(b) but never explains how that rule supports
its request. That rule provides that once a deadline expires, a party may seek an extension
of the deadline only upon a showing of “excusable neglect.” Mo. Sup. Ct. R. 44.01(b).
“Excusable negligent” is defined as the failure to act “not because of the party’s own carelessness [or] inattention, … but because of some unexpected or unavoidable hindrance or
accident.” Inman v. St. Paul Fire & Marine Ins. Co., 347 S.W.3d 569, 576 (Mo. App.
2011); Flowers v. City of Campbell, 384 S.W.3d 305, 314 (Mo. App. 2012).
Here, not only does Rule 44.01(b) not apply because DHSS is not asking for an
“extension” of time to respond, the only effort DHSS makes to show neglect is to assert
that “[a]t the time this issue was discovered,” the case was assigned to a new assistant
attorney general. (Def. Mot. for Leave at 3). But repeated decisions of the Court of Appeals
have held that the mere failure of counsel to act in a timely manner does not qualify as
48
32469802v.1

 “excusable neglect. See, e.g., Irvin v. Palmer, 580 S.W.3d 15, 23 (Mo. App. 2019); Flowers
v. City of Campbell, 384 S.W.3d 305, 314 (Mo. App. 2012); Inman v. St. Paul Fire &
Marine Ins. Co., 347 S.W.3d 569, 577 (Mo. App. 2011); Allison v. Tyson, 123 S.W.3d 196,
205 (Mo. App. 2003).
Accordingly, the Court finds that DHSS has not shown “excusable neglect.”
C.

DHSS’ “public policy concerns” are futile

Notwithstanding the procedural defects with DHSS’ request for leave, the Court
has reviewed DHSS’ proposed filing and finds that it is legally ineffectual because DHSS’
arguments regarding “public policy concerns” are futile.
Just last year, the Missouri Supreme Court reaffirmed the principle that public policy is the domain of the Legislature, not the courts. “This Court will not second-guess how
the legislature struck the delicate balance between the competing interests of privacy and
transparency. This Court’s obligation is to apply the … sunshine law as written, not as the
election board may believe it could be better written.” Roland v. St. Louis City Bd. of Election Commissioners, 590 S.W.3d 315, 321 (Mo. banc 2019).
This rule of law is not new. “This Court, however, is not a policy-making body.”
Scroggins v. Missouri Dep’t of Soc. Servs., 227 S.W.3d 498, 503 (Mo. App. 2007).
“[I]ssues of policy must be addressed to the state legislature, and we are tasked only to give
effect to the statute as written by the legislature.” Laut, 417 S.W.3d at 325. “‘There is no
room for construction even when a court may prefer a policy different from that enunciated
by the legislature.’” Spradlin v. City of Fulton, 982 S.W.2d 255, 261 (Mo. 1998).
Accordingly, whether Section 193.245 should prohibit disclosure is irrelevant, for
“[s]tatutory amendment is the prerogative of the Legislature.” N. Kansas City Hosp. Bd. of
Trustees v. St. Luke’s Northland Hosp., 984 S.W.2d 113, 122 (Mo. App. 1998). And in this
49
32469802v.1

 case, DHSS admits that it tried to do just that, i.e., to amend Section 193.245 to prohibit
disclosure of birth and death listings, and failed. DHSS cannot obtain from this Court what
it failed to obtain from the Legislature; instead, this Court must give effect to the statute as
written.
Accordingly, even if the Court were to consider DHSS’ proposed supplemental filing, the Court would find that its effort to introduce the concept of “public policy” would
be futile.
For all these reasons, DHSS’ motion for leave to file additional summary judgment
papers is denied.
VII.

DHSS’ motion for summary judgment is denied

After DHSS lodged its proposed supplemental response in opposition to Plaintiffs’
motion for summary judgment, it filed its own motion for summary judgment. In it, DHSS
argued that “Section 213.245 … authorizes, but does not require, DHSS to provide” birth
and death listings upon request. (Def. Summ. Judgment Mot. at 2). Presumably, DHSS
meant to cite to Section 193.245, for there is no Section 213. 245.
In any event, this Court has already found that because Section 193.245 does not
“specifically prohibit” disclosure of the requested birth and death listings, it cannot serve
as a basis for closing the listings. Accordingly, DHSS’ motion for summary judgment is
denied for the same reasons Plaintiffs’ motion for summary judgment is granted.
Additionally, the Court has reviewed the statement of facts which DHSS submitted
with its motion and finds that those facts are largely duplicative of the statement of facts
submitted by Plaintiffs. And where DHSS has submitted new facts, those facts support the

50
32469802v.1

 Court’s finding that DHSS knowingly and purposefully violated the Sunshine Law by
denying Plaintiffs’ request for birth and death listings.5
For example, DHSS Fact No. 8 states that DHSS’ initial response to Plaintiffs’ requests “was a standard response to a request for records under the Sunshine Law.” That is
exactly what Plaintiffs have alleged, as it shows that DHSS knew that Plaintiffs’ requests
were made under the Sunshine Law.
Similarly, DHSS Fact Nos. 11-18 relate to conversations Ms. Ganz had with Dr.
Louis Wambuguh, who at the time was Interim Chief and a Research Manager in the Bureau of Vital Statistics. (DHSS Fact No. 11). In that position, Dr. Wambuguh’s “duties
include managing vital statistics, including oversight of the [sic] protecting confidentiality
of vital records.” (DHSS Fact No. 12). According to DHSS’ own facts, during one such
conversation, “Dr. Wambuguh told Ms. Ganz that DHSS was able to provide names and
the date of birth or date.” (DHSS Fact No. 14). “Dr. Wambuguh concluded the call by
stating that someone would be getting back to Ms. Ganz with a cost estimate.” (DHSS Fact
No. 17).
Again, these facts support Plaintiffs’ allegation that DHSS repeatedly stated it
would produce the requested birth and death listings, and that the only delay was in calculating the cost of producing the listings.
As such, none of DHSS’ facts change this Court’s conclusion that DHSS knowingly
and purposefully violated the Sunshine Law when it improperly denied Plaintiff’s requests
for birth and death listings.

5

Interestingly, the statement of facts which DHSS attached to its separate motion
for summary judgment did not include any of the facts DHSS included with its proposed
supplemental response to Plaintiffs’ motion for summary judgment.
51
32469802v.1

 Judgment
WHEREFORE, it is hereby ordered, adjudged and decreed as follows:
1.

The Motion of Plaintiffs Brooke Schreier Ganz, both individually and as an

authorized representative of Reclaim the Records, a non-profit, unincorporated association,
for Summary Judgment as to Counts II, III and IV is Granted;
2.

Defendant Department of Health and Senior Services is ordered to provide

Plaintiff Brooke Schreier Ganz with (a) digital listings of all persons who were born in the
State of Missouri between 1920 and 2015 (which shall include the name of each person
and the date of their birth) and (b) digital listings of all persons who died in the State of
Missouri between 1968 and 2015 (which shall include the name of each person and the
date of their death), within 15 days following the receipt of payment from Plaintiff of the
total cost of $2, 557.30;
3.

Because Plaintiffs have received the relief they requested in Count I by the

the grant of summary judgment in their favor as to Count II, Count I of Plaintiffs’ Petition
is dismissed as moot;
4.

Defendant Missouri Department of Health and Senior Services is ordered

to pay Plaintiff Brooke Schreier Ganz a penalty of $1,000 for its knowing violation of the
Sunshine Law as to the excessive charges it levied in response to Plaintiffs’ request for
birth listings;
5.

Defendant Missouri Department of Health and Senior Services is ordered

to pay Plaintiff Brooke Schreier Ganz a penalty of $1,000 for its knowing violation of the
Sunshine Law as to the excessive charges it levied in response to Plaintiffs’ separate request for death listings;

52
32469802v.1

 6.

Defendant Missouri Department of Health and Senior Services is ordered

to pay Plaintiff Brooke Schreier Ganz a penalty a $5,000 for its purposeful violation of the
Missouri Sunshine Law when it denied Plaintiffs’ request for birth listings;
7.

Defendant Missouri Department of Health and Senior Services is ordered

to pay Plaintiff Brooke Schreier Ganz a penalty a $5,000 for its purposeful violation of the
Missouri Sunshine Law when it denied Plaintiffs’ request for death listings;
8.

Defendant Missouri Department of Health and Senior Services is ordered

to pay Plaintiff Brooke Schreier Ganz her costs and reasonable attorney’s fees in establishing DHSS’ violations of the Sunshine Law;
9.

The parties are directed to meet and confer regarding the amount of Plaintiff

Brooke Schreier Ganz’s costs and reasonable attorney’s fees. If the parties can agree on
such amount, they are directed to submit a proposed Judgment to the Court. If the parties
are unable to agree on such amount, Plaintiff is directed to submit via motion an application
for attorney’s fees;
10.

The Motion of Defendant Missouri Department of Health and Senior Ser-

vices for leave to file a supplement response to Plaintiff’s Motion for Summary Judgment
is Denied; and
11.

The Motion of Defendant Missouri Department of Health and Senior Ser-

vices for Summary Judgment is Denied.
April 15, 2020

________________________
Date

___________________________
The Honorable Patricia S. Joyce

53
32469802v.1