Gross v. Schmitt
Gross v. Schmitt
2025 WL 309659 (Mo. Ct. App. 2025)
January 28, 2025
Ardini Jr., Edward R., Judge
Summary
The Court of Appeals denied Elad Gross's appeal against the Missouri Attorney General's Office (AGO) for violating the Sunshine Law and the Missouri Constitution. The court found that the AGO did not violate the Sunshine Law by not producing records within the three-day deadline, and that they were allowed to close records related to potential litigation under section 610.021(1). The court also noted that Gross's failure to respond to the AGO's motion for summary judgment resulted in the admission of the AGO's statement of uncontroverted facts.
ELAD GROSS, Appellant,
v.
ERIC SCHMITT, ET AL., Respondents
v.
ERIC SCHMITT, ET AL., Respondents
WD87007
Missouri Court of Appeals, Western District
Opinion Filed January 28, 2025
APPEAL FROM THE CIRCUIT COURT OF COLE COUNTY, MISSOURI THE HONORABLE DANIEL R. GREEN, JUDGE
Panel members:
Ahuja, Alok,
Ardini Jr., Edward R.,
Thomson, W. Douglas
Ardini Jr., Edward R., Judge
Opinion
Elad Gross appeals the entry of summary judgment by the Circuit Court of Cole County (“trial court”) in favor of Missouri Attorney General Eric Schmitt,[1] Acting General Counsel Justin Smith (“Smith”), and Records Custodian Megan Werdehausen (“Werdehausen”) (collectively, the “AGO”) on Gross's petition alleging the AGO violated Missouri's Sunshine Law[2] and Article I, Section 8 of the Missouri Constitution. Gross contends the trial court erroneously granted summary judgment and abused its discretion by closing discovery through issuance of a protective order. We affirm the trial court's judgment.
Procedural Background
This litigation arises from three Sunshine Requests submitted by Gross to the AGO in early 2021.[3] He submitted his first Sunshine Request (“first request”) on January 11, 2021, seeking records related to “the Missouri AG's efforts to contest electoral college results[.]” In response, Werdehausen produced ninety pages of documents. Gross submitted a second Sunshine Request (“second request”) on February 25, 2021, for “[a]ny and all emails, text messages, communications, or other records sent between Missouri Attorney General Eric Schmitt and other states’ Attorneys General or staff dating since January 2019.” Werdehausen's response to the second request indicated that the AGO had “no records responsive to his request.” On March 5, 2021, Gross submitted a third Sunshine Request (“third request”) seeking “[e]mails, search records, and any other records showing how the Missouri Attorney General's Office searched for records and in what locations” when responding to Gross's first request. Werdehausen indicated that records responsive to the third request were closed under section 610.021(1) RSMo.
In April of 2021, Gross[4] filed a four-count petition against Attorney General Schmitt, Smith, and Werdehausen. Counts I, II, and III asserted that the AGO violated the Sunshine Law.[5] Count IV alleged the AGO denied Gross access to open records based on public statements made by Gross that were critical of the “Office of Attorney General” and that the AGO's action violated the Missouri Constitution's “protection of free speech and prohibition of retaliation[.]”
The AGO served upon Gross its Request for Production of Documents (“RFP”) on August 30, 2021. Gross responded in part but objected to RFP No. 10 (“RFP 10”) which sought “all Documents and Communications with any third parties that relate in any way to [Gross's] Sunshine requests or this lawsuit,” by asserting that responsive documents were protected by the attorney/client privilege.
The AGO filed a Motion to Compel requesting that Gross be ordered to produce documents responsive to RFP 10. In its motion, the AGO challenged Gross's claim of attorney/client privilege by noting that Gross was “acting pro se and has failed to give [the trial court] or Defendants any evidence to the contrary.” Following a hearing, Gross was ordered to produce records responsive to RFP 10. Gross produced links to articles written about his “investigation” into the AGO; links to radio interviews and podcasts where Gross was a guest; and links to a collection of statements Gross made on his Twitter account (now, X). All of this information was publicly disseminated content that did not constitute attorney-client communication. The same day he provided his supplemental response to RFP 10, Gross requested dates to conduct the depositions of Smith and Werdehausen.
The AGO filed a Motion for Protective Order requesting the trial court sanction Gross for his “abuse of the discovery process[ ]” arguing that Gross's discovery-related conduct “ha[d] wasted (and will continue to waste) the State's and the Court's time and resources.” By example, the AGO highlighted Gross's actions related to RFP 10 by arguing that Gross either “wrongfully withheld responsive documents” or “is wasting the State's and the Court's time on bad-faith arguments.” The AGO additionally questioned Gross's motives underlying his request for deposition dates for Smith and Werdehausen, explaining that the AGO had “previously provid[ed] [deposition] dates in November and December 2021 but [had] not hear[d] a word from [Gross].”
The trial court held a hearing on the AGO's Motion for Protective Order on February 28, 2022. Gross has not included a transcript of this hearing in the record on appeal.[6] On October 24, 2022, the trial court granted the AGO's motion by entering a protective order closing discovery. The order stated:
Before the Court is Defendants’ Motion for Protective Order, filed on February 23, 2022, which requests that the Court order discovery closed. Having fully considered the parties’ pleadings, evidence, written arguments, and oral arguments, Defendant's motion for protective order is granted. Discovery is closed.
The AGO moved for summary judgment on all four counts of Gross's petition on April 10, 2023. Gross failed to file a response to this motion. Instead, on May 22, 2023, he filed a Motion to Strike Defendant's Motion for Summary Judgment[7] and requested the trial court conduct an in camera review of the records responsive to Gross's third request. On January 19, 2024, the trial court entered summary judgment in favor of the AGO on all counts.[8]
This appeal follows.
Analysis
Gross raises twelve points on appeal. His first six points contend the trial court erred by granting summary judgment in favor of the AGO. The remainder of Gross's points (Points VII through XII) assert the trial court abused its discretion by “prematurely” closing discovery. As our review of Points VII through XII concern facts outside the summary judgment record, we will review those points first for ease of discussion.
The trial court entered its protective order closing discovery pursuant to Rule 56.01(c),[9] which provides that:
Upon motion by a party or by the person from whom discovery is sought, including e-discovery, and for good cause shown, the court may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense[.]
A trial court's enforcement of the rules of discovery is reviewed for an abuse of discretion. See Morphis v. Bass Pro Group, LLC, 518 S.W.3d 259, 261 (Mo. App. S.D. 2017).
Trial courts have broad discretion in administering rules of discovery, which this Court will not disturb absent an abuse of discretion. When reviewing the trial court's decision regarding issues arising from pre-trial discovery, of which appellate courts grant trial court decisions great deference, we look only for an abuse of this broad discretion which results in prejudice or unfair surprise.
Rasmussen v. Ill. Cas. Co., 628 S.W.3d 166, 172 (Mo. App. W.D. 2021) (internal marks and citations omitted). “The circuit court abuses its discretion in administering the discovery rules when its ruling is clearly against the logic of the circumstances, is arbitrary and unreasonable, and indicates a lack of careful consideration.” Main v. Main, 685 S.W.3d 620, 631 (Mo. App. E.D. 2024) (internal marks omitted).
Points VII through XII each relate in some manner to the trial court's closing of discovery through the granting of the AGO's Motion for Protective Order. However, in his argument in support of each of these points, Gross fails to address (or acknowledge) that the protective order was entered by the trial court as a sanction for his conduct during the discovery process. Indeed, the Motion for Protective Order was filed after the trial court had compelled Gross to produce documents that he had withheld on a claim that they were privileged attorney-client communication. Despite this assertion, Gross “produced several URLs to public websites ... but zero documents” containing any “communications.” As a result, the issue is not, as Gross wishes to cast it, whether he was pursuing properly discoverable material through an effort to depose Smith and Werdehausen. Rather, the question is whether the trial court abused its discretion by closing discovery as a sanction for Gross's conduct during the discovery phase of the litigation.
As previously noted, Gross has not provided us with a copy of the transcript of the hearing on the Motion for Protective Order. “The record on appeal shall contain all of the record, proceedings and evidence necessary to the determination of all questions to be presented, by either appellant or respondent, to the appellate court for decision. It is divided into two components: the legal file and the transcript.” Rule 81.12(a). As the appellant, it was Gross's duty to provide this Court with a record sufficient to decide the issues he raises in the appeal. Rule 81.12(c)(1). In the absence of a transcript of the hearing on the Motion for Protective Order, we are without a means to verify the evidence that was before the trial court. See Voepel Prop. Mgmt. Inc. for Owner Isla Prop. Co., LLC v. Bates, 647 S.W.3d 878, 879 (Mo App. W.D. 2022). More specifically, “[w]ithout a transcript we are unable to determine if there is a basis for concluding an alleged error occurred, whether such error was waived or invited, or even whether an alleged error resulted in manifest injustice[.]” Id. Where an appellant fails to file a transcript, “such evidentiary omission will be taken as favorable to the trial court's ruling and unfavorable to the appellant.” Alhalabi v. Mo. Dept. of Corr., 662 S.W.3d 180, 192 (Mo. App. W.D. 2023). With this background and law in mind, we now turn to the specific challenges Gross raises on appeal relating to the granting of the AGO's Motion for Protective Order and closing of discovery.
We first address Points IX through XII. In these points, Gross challenges an order and findings of the trial court that are not included in the record on appeal. In Points IX and XII, Gross attacks a “sua sponte order” by the trial court that he claims required him to “depose [Smith and Werdehausen] only upon written questions” to avoid issuance of a protective order. Similarly, Points X and XI pertain to the trial court's “sua sponte find[ings]” that Smith and Werdehausen were “too busy to be deposed upon oral examination[.]” There is nothing in the record indicating the existence of either the “sua sponte order” or “sua sponte findings” Gross challenges in these points.[10] Because the record on appeal does not contain the order or “findings” referenced by Gross, there is nothing for us to review. Therefore, we deny Points IX, X, XI, and XII.
Next, we consider Gross's contention in Point VII that the trial court's issuance of a protective order “was an unwarranted and extreme restriction” on his rights. Throughout his argument, Gross recharacterizes the nature of the protective order issued by the trial court – not as a sanction against him but rather as a usurpation of his right to depose Smith and Werdehausen by his preferred method of oral examination. Moreover, Gross incorrectly insists that the trial court lacked authority to issue a protective order based upon a requirement contained in an outdated version of the rule pertaining to protective orders. Indeed, Gross relies upon a requirement that is not found in Rule 56.01(c).[11] Point VII is denied.
Gross's next point (Point VIII) argues that he was entitled to orally depose Smith and Werdehausen because the AGO “failed to show good cause for why depositions must be taken only upon written questions.” In support of this assertion, Gross argues the trial court failed to hold an evidentiary hearing prior to its entry of the protective order and did not provide “any reasoning” to support a finding of good cause “to prevent” him from deposing Smith and Werdehausen. We again emphasize that Gross ignores that the protective order was issued as a sanction for his conduct during the discovery process and that the trial court did hold a hearing on the AGO's Motion for Protective Order. While we do not have the benefit of a transcript from that hearing, the trial court's order granting the protective order indicates that “evidence” was presented: “[b]efore the Court is Defendants’ Motion for Protective Order, filed on February 23, 2022, which requests that the Court order discovery closed. Having fully considered the parties’ pleadings, evidence, written arguments, and oral arguments, Defendant's motion for protective order is granted. Discovery is closed.” (emphasis added).
Because Gross has not provided us the relevant transcript, we must view this omission favorable to the trial court's order and presume the “evidence” referenced in the trial court's order was sufficient to support issuance of the protective order. See Alhalabi, 662 S.W.3d at 192. Accordingly, we deny Point VIII.
The remainder of Gross's points each maintain the trial court erroneously granted summary judgment in favor of the AGO on the four counts contained in Gross's petition. The standard of review applicable to summary judgment was laid out by the Missouri Supreme Court in Green v. Fotoohighiham, 606 S.W.3d 113, 116 (Mo. banc 2020):
The trial court makes its decision to grant summary judgment based on the pleadings, record submitted, and the law; therefore, this Court need not defer to the trial court's determination and reviews the grant of summary judgment de novo. In reviewing the decision to grant summary judgment, this Court applies the same criteria as the trial court in determining whether summary judgment was proper. Summary judgment is only proper if the moving party establishes that there is no genuine issue as to the material facts and that the movant is entitled to judgment as a matter of law. The facts contained in affidavits or otherwise in support of a party's motion are accepted as true unless contradicted by the non-moving party's response to the summary judgment motion. Only genuine disputes as to material facts preclude summary judgment. A material fact in the context of summary judgment is one from which the right to judgment flows.
The record below is reviewed in the light most favorable to the party against whom summary judgment was entered, and that party is entitled to the benefit of all reasonable inferences from the record. However, facts contained in affidavits or otherwise in support of the party's motion are accepted as true unless contradicted by the non-moving party's response to the summary judgment motion. In addition, the non-movant must support denials with specific references to discovery, exhibits, or affidavits demonstrating a genuine factual issue for trial. Facts not properly supported under Rule 74.04(c)(2) or (c)(4) are deemed admitted.
(internal marks and citations omitted).
Gross did not file a response to the AGO's Motion for Summary Judgment which resulted in the admission of the AGO's statement of uncontroverted facts. See id. at 117 (failure to respond to a motion for summary judgment results in “the admission to all ... uncontroverted material facts.”). Those uncontroverted facts are as follows:
Plaintiff's First Sunshine Request
1. On January 11, 2021, Plaintiff submitted the first of three Sunshine requests to the Attorney General's Office through the Sunshine and Government Accountability Project.
2. This request sought records from Defendants, including:
- Communications between the Missouri Attorney General's Office, the Republican Attorneys General Association, and the Rule of Law Defense Fund;
- Communications between the Missouri Attorney General's Office, the Republican Attorneys General Association, and the Rule of Law Defense Fund regarding the 2020 presidential election, Missouri's amicus brief challenging Pennsylvania's election results, and the January 6, 2021 event at the United States Capitol;
- Calendar entries mentioning the Republican Attorneys General Association or the Rule of Law Defense Fund.
3. On January 14, 2021—three business days after the Attorney General's Office received Plaintiff's request—the custodian of records responded to Plaintiff's request in relevant part, “Your above-referenced records request was received by our custodian of records on January 11, 2021. Due to the dates and the volume of records to be searched, the earliest we expect responsive records, if any, to be available is January 28, 2021. In the event they are available earlier, we will provide them as soon as they are available.”
Plaintiff's Second Sunshine Request4. The Attorney General's Office was not able to provide responsive records by January 28, 2021.5. On February 3, 2021, the custodian of records updated Plaintiff on his request. Her letter stated in relevant part, “Due to our ongoing search for all records, and review of such records, the earliest we now expect responsive records to be available is February 19, 2021. In the event they are available earlier, we will provide them as soon as they are available.6. On February 18, 2021, the Attorney General's Office provided 90 pages of responsive open public records to Plaintiff.
7. On February 25, 2021, Plaintiff submitted his second request for public records, this time seeking correspondence between the Attorney General and other states’ attorney general offices.
Plaintiff's Third Sunshine Request8. On March 3, 2021—three business days after the Attorney General's Office received Plaintiff's request—the custodian of records responded and informed Plaintiff that the Office had no responsive records to the request.
9. On March 5, 2021, Plaintiff submitted his third request for public records, this time seeking records showing how the Attorney General's Office internally handled his first records requests. Specifically, Plaintiff sought: “Emails, search records, and any other records showing how the Missouri Attorney General's Office searched for records and what locations the Missouri Attorney General's Office searched in response to the Sunshine Request dated January 11, 2021 sent by attorney [M.P] on behalf of Elad Gross and the general public.”
10. On March 10, 2021—three business days after the Attorney General's Office received Plaintiff's request—the custodian of records responded to it, informing Plaintiff that the records he sought were closed under § 610.021(1), RSMo.11. On March 15, 2021, Plaintiff sent a letter to the Attorney General's Office asking it to reconsider its denial of his third records request.12. Though no provision of the Sunshine Law required the Attorney General's Office to respond to Plaintiff's demand letter, on March 18, 2021, the Office's then-acting general counsel sent Plaintiff a four-page letter explaining the basis for closing records in response to Plaintiff's third Sunshine request.
13. On March 19, 2021, just one day after the Attorney General's Office sent its letter explaining the basis for its denial, Plaintiff replied with a letter attempting to refute the Office's interpretation of the Sunshine Law.
@BigElad's Tweets about His Lawsuit Plans
14. On February 23, 2021, Plaintiff, who calls himself @BigElad on Twitter, accused the Missouri Attorney General, via Twitter, of “[p]otential violation of public records laws.”
15. This tweet includes a screenshot of a report by Plaintiff that states, in part:
The emails received in response to [Plaintiff's] Sunshine Request reveal four categories of legal and ethical concern:...
Violation of Missouri's Public Records Law
Missouri's Sunshine Law, RSMo. Chapter 610, requires state entities to produce public records upon request. It appears that we only received emails from official email accounts, but the law does not limit production to such accounts. The email contents indicate we did not receive all of the material. We did not receive any calendar entries. We also did not receive any communications between Missouri's Attorney General and other state Attorneys General. Missouri's Attorney General notably does not use official email, but storing public records on private accounts does not nullify the Sunshine Law.
16. In Plaintiff's published report, referenced in the February 23, 2021 tweet, Plaintiff recommends, among other things, that someone, “Fully Investigate the Issues Identified in this Report.”17. On March 10, 2021, Plaintiff stated, via Twitter: “Missouri Attorney General Eric Schmitt won't turn over records related to the illegal use of taxpayer resources for political purposes in his office. I will do my best to educate him about the Sunshine Law, but if he refuses to follow the law, I'll ask a judge to make him.”18. On March 11, 2021, Plaintiff stated, via Twitter: “Let's try to find out. Today, I'm sending an explanation of the Sunshine Law to our Attorney General, a request that he provide a full reason for closing the records or that he reconsider, and, if all else fails, a notice of my pending lawsuit.”
19. On March 15, 2021, Plaintiff stated, via Twitter: “Missouri's Attorney General shouldn't exempt himself from the laws he's supposed to enforce. Nor should he manipulate the Sunshine Law to hide records of corruption. It's the first day of #SunshineWeek. We'll end this week with transparency or with a lawsuit. The choice is his.”20. On March 18, 2021, Plaintiff stated, via Twitter: “I gave Missouri's Attorney General until 10 AM today to stop using our Sunshine Law to hide records or I would take him to court. At 9:51, his office asked me to wait until the close of business today. I have granted him that request in the hopes my letter has changed his mind.”21. On April 8, 2021, Plaintiff wrote 17 posts on his Twitter account that, among other things, announced his lawsuit, explained his reasons for filing it, and published both the Attorney General's March 18th letter and his response.22. Also on April 8, 2021, Plaintiff filed this lawsuit against the Attorney General, his chief of staff, and his custodian of records.23. On August 30, 2021, Defendants submitted discovery requests to Plaintiff.24. On September 29, 2021, Plaintiff responded to Defendants’ discovery requests, objecting on multiple grounds.25. After meeting and conferring, and without waiving his objections, on October 29, 2021, Plaintiff supplemented his response and produced 48 pages of documents.
26. On January 24, 2022, Plaintiff again supplemented his response to Defendants’ discovery requests and produced web links to the original sources of online posts in the possession of third parties, including 5 news articles, 2 podcasts, 8 radio interviews, and 42 of his own tweets.
(record citations omitted).
The AGO provided a detailed explanation for the delay and earliest time and date records would be available (Points IV and V)
Gross's first request sought: “all emails between @ago.mo.gov and @republicanags.com” and “@RLDF.org” and “all calendar entries” that mentioned or referred to the Republican Attorneys General Association or Rule of Law Defense Fund, as well as “all communications, including but not limited to emails and text messages” between the Attorney General (including executive level employees) and “a) any other state's Attorney General, b) any employee or agent of the Republican Attorneys General Association, c) any employee or agent of the Rule of Law Defense Fund[,]” discussing “the Missouri amicus brief in support of the challenge to Pennsylvania's certification of electoral college votes, and/or the planned protests at the U.S. Capitol on January 6, 2021.” The scope of time included in this request was from July 1, 2020, through January 11, 2021 (the day of his request).
Werdehausen timely informed Gross that the records he requested would not be immediately available “[d]ue to the dates and the volume of records to be searched” and provided an anticipated “production date” of January 28, 2021.[12] In his petition, Gross alleged the AGO violated the Sunshine Law by failing to provide him with a detailed explanation for the delay (Count III) and the “earliest time and date” the records would be available to inspect (Count II). Gross contends that the trial court erroneously granted summary judgment in favor of the AGO on these counts.
When records are requested from a public governmental body under the Sunshine Law, the public governmental body is required to act upon the request within three business days. See § 610.023.3. If access to the public records is not possible in that timeframe, the public governmental body must provide the requestor with a “detailed explanation of the cause for further delay and the place and earliest time and date that the record will be available for inspection. This period for document production may exceed three days for reasonable cause.” Id.
Gross argues in Point IV that summary judgment was improperly granted on Count II because the AGO did not produce responsive records by the “earliest time and date” initially declared by Werdehausen – January 28, 2021. Without citation to any relevant legal authority,[13] Gross proposes that the “earliest time and date” language in section 610.023.3 creates a firm deadline to produce responsive records. The language of section 610.023.3 does not compel such a strict reading.
Here, Werdehausen responded to Gross's first request with an “earliest time and date” of January 28, 2021, for the production of responsive documents. That date was only nine business days after receipt of Gross's request. Werdehausen subsequently informed Gross that the AGO would need additional time to “search for all records and review” them, and that the earliest it expected responsive records to be available was February 19, 2021. In the end, the AGO produced responsive records ahead of that date.
We view the general assembly's use of the term “earliest,” together with “time and date” in section 610.023.3, as an admonition to public governmental bodies unable to grant access to public records within three business days of receipt of a sunshine request to provide the soonest date it anticipates being able to respond to the request. Consistent with the overarching purpose of the Sunshine Law to promote openness, public governmental bodies are duty-bound to diligently act to produce responsive records as quickly as possible. However, we do not read section 610.023.3 as imposing an unmovable deadline. The law is not written so inflexibly. Rather, when circumstances render, despite best efforts, a public governmental body unable to produce responsive records by the “earliest time and date” it has provided, the public governmental body is permitted to supply the requestor with an explanation for why additional time is needed and, based on a reasonable assessment of the attendant situation, a new “earliest time and date” the records will be ready for inspection. That is precisely what happened here. Point IV is denied.
In Point V, Gross argues that Werdehausen's “boilerplate and duplicative explanations were not detailed[ ]” as required by section 610.023.3 and complains that the AGO “provided no affidavits or other evidence to support these explanations as being accurate or detailed.”[14]
The summary judgment record established that the AGO explained to Gross that the delay in producing the records was “[d]ue to the dates and the volume of records to be searched[.]” Given the broad nature of Gross's first request, both in scope and timeframe, this explanation was reasonable and sufficiently detailed. See e.g. Sansone v. Gov. of Mo., 648 S.W.3d 13, 28-29 (Mo. App. W.D. 2022) (the public governmental body's stated reason for its delay was that it was “in the process of reviewing” all five of the appellant's requests; that explanation was reasonable and sufficiently detailed).
Point V is denied.
The AGO Properly Closed Records Pursuant to Section 610.021(1) (Points I, II, and III)
Points I, II, and III each concern Count I of Gross's petition accusing the AGO of improperly closing records responsive to his third request. That request sought:
Emails, search records, and any other records showing how the Missouri Attorney General's Office searched for records and what locations the Missouri Attorney General's Office searched in response to the Sunshine Request dated January 11, 2021 sent by attorney [M.P.] on behalf of Elad Gross and the general public.
Werdehausen informed Gross that responsive records were closed under section 610.021(1).
Gross contends in Point III that the “law provides that the [AGO] improperly closed records requested in [Gross's] third Sunshine Request.” Point I asserts that the AGO had the burden to show compliance with Chapter 610, and failed to satisfy that burden because no evidentiary hearing was held. In Point II, Gross insists that the AGO was required to submit the documents responsive to his third request for in camera review in order to establish compliance with the Sunshine Law. With regard to these points, our task is to determine whether the Rule 74.04(c) record entitled the AGO to judgment as a matter of law on Count I of Gross's petition. We find that it did.
In an action seeking judicial enforcement of the Sunshine Law, the complaining party must establish that the public governmental body is subject to the Sunshine Law and that it “has held a closed meeting, record or vote[.]” § 610.027.2. Once this preliminary hurdle is met, “the burden of persuasion shall be on the [public governmental] body and its members to demonstrate compliance with the requirements” of Chapter 610. Id. It having been shown that the AGO is subject to the Sunshine Law and has closed records, the burden was on the AGO to establish that it complied with sections 610.010 to 610.026 in its closing of records responsive to the third request.
In the instant case, the AGO closed the records responsive to Gross's third request under section 610.021(1), which permits a public governmental body to close records related to “[l]egal actions, causes of action or litigation involving a public governmental body and any confidential or privileged communications between a public governmental body or its representatives and its attorneys.” The reference to “[l]egal actions, causes of action or litigation” includes both pending and potential litigation. See Tuft v. City of St. Louis, 936 S.W.2d 113, 118 (Mo. App. E.D. 1996). A “cause of action” is a “claim or general subject matter upon which an action may be maintained, and thus is not limited to cases in which a petition is filed.” Id. at 117. “Where the justification offered is potential as opposed to pending litigation, the governmental body should properly bear a heavy burden of demonstrating both a substantial likelihood that litigation may occur and a clear nexus between the document sought and the anticipated litigation.” Id. at 118.
I. Substantial likelihood that litigation may occur
Gross argues that the “administrative search records” sought through his third request could not be closed under section 610.021(1) because he had not threatened litigation at the time of his third request. This assertion is not accurate. On February 23, 2021, ten days before the third request was submitted, Gross made statements on his Twitter account that accused the AGO of a “potential violation of public records laws[.]” He also published a twenty-page report, wherein he accused the AGO of withholding documents responsive to his first request. Thus, contrary to Gross's claim, the AGO closed records responsive to Gross's third request after he had explicitly “threatened litigation” over its handling of his first request.
The dissent does not dispute that Gross had threatened litigation over the AGO's processing of his first request prior to submitting his third request. However, the dissent asserts that the litigation landscape at the time a public governmental body receives a document request is of no consequence to the analysis because that is not the relevant moment in time. Instead, according to the dissent, the dye is forever cast on whether a document can be closed under the exemption found in section 610.021(1) at the time the document is created. Under this view, a document can only be closed under section 610.021(1) if there exists a “substantial likelihood” of litigation when the document is created and the document is “created in whole or in part because of actual or [the] potential litigation.”[15] The dissent essentially imposes a quasi-work product limitation to the reach of section 610.021(1).[16] No Missouri precedent makes such a declaration.[17]
Under section 610.021(1) the presence of a “substantial likelihood” of litigation is measured at the time of the document request and the AGO plainly met its burden of “demonstrating [ ] a substantial likelihood that litigation may occur[ ]” related to its compliance with chapter 610, RSMo, in responding to Gross's first request.
II. Clear nexus to the potential litigation
We next examine whether a clear nexus exists between the records sought through the third request and the threatened litigation. The necessary nexus is not derived from the identity of the individual requesting the record, but rather from the inherent nature of the record itself. See Wyrick v. Henry, 592 S.W.3d 47, 56-57 (Mo. App. W.D. 2019).
[P]ublic records do not have a “clear nexus” to litigation merely because they could be relevant (that is, discoverable or admissible) in litigation threatened by a requesting party. Rather, when the focus is placed on the nature of the record itself ... a “clear nexus” exists only in those narrow instances where the record by its inherent nature “relates to” pending or threatened litigation – a determination that is not influenced by the identity of the person making a Sunshine [Request], or by whether the public governmental body has been placed on notice of threatened litigation.
Id. at 57.
While several cases have addressed the reach of section 610.021(1) in a variety of scenarios, this case presents a unique question for which we have found no direct precedent – application of section 610.021(1) to records created by a public governmental body in responding to a previous Sunshine Request where the threatened litigation concerns the public governmental body's handling of that previous records request.
Upon receipt of a sunshine request, a public governmental body necessarily engages in a process designed to identify responsive documents. This process requires action by the public governmental body that may include (as it did here) the generation of new records that capture its efforts to comply with its legal obligations under chapter 610, RSMo. These records are created after receipt of a Sunshine Request, perform an integral role in shaping the response to the request and, thus enjoy an inherent and clear nexus to the public governmental body's effort to satisfy its obligations under chapter 610, RSMo.
The records responsive to Gross's third request are such records. They were created after the AGO had received Gross's first request, reflect the methods employed by the AGO to respond to the first request, and reveal how it efforted to avoid litigation of the nature explicitly threatened by Gross prior to submission of his third request. The nature of these records rendered them not merely discoverable or admissible[18] in an enforcement action over the AGO's compliance with the Sunshine Law concerning its response to Gross's first request but go to the very core of such an action by disclosing the precise means utilized by the AGO to comply with its legal responsibilities. As a result, this is one of “those narrow instances where the record[s] by [their] inherent nature ‘relate[ ] to’... [the] threatened litigation[.]”[19] Wyrick, 592 S.W.3d at 57. As a result, the AGO was entitled to close these records under section 610.021(1).
Finally, we must address the dissent's claim that our finding—that these search records are closed—will result in “an open-ended application” to section 610.021(1) that would shield from public view any records that may relate to potential litigation. This assertion is unfounded. First, it is not enough that the public governmental body simply fears litigation will be brought; rather the public governmental body bears the “heavy burden” to establish that there exists a “substantial likelihood” that the litigation will commence. If that initial burden is satisfied, the public governmental body must next show that the inherent nature of the record at issue has a clear nexus to that litigation. This has been the legal standard since Tuft was decided 28 years ago and, here, it was met by the AGO.
Based on the Rule 74.04(c) record, the AGO carried its burden of showing compliance with the Sunshine Law in its handling of Gross's third request and the trial court properly granted summary judgment in its favor on Count I. Point III is denied. Moreover, since the summary judgment record established that the AGO was entitled to a judgment as a matter of law on Gross's claim that it had not complied with the Sunshine Law in its handling of his third request, no evidentiary hearing or in camera review was necessary.[20] Points I and II are also denied.
Free Speech Retaliation Claim (Point VI)
We now turn to Gross's assertion in Point VI that the trial court's entry of summary judgment on Count IV in favor of the AGO was erroneous. This count alleged that the AGO violated the Missouri Constitution's protection of free speech and prohibition of retaliation by closing records responsive to Gross's third request.[21] In this request, Gross asked the AGO to produce records of the means and methods used to search for the documents responsive to Gross's first request.
Having determined in our discussion of Points I through III that the AGO acted in compliance with the Sunshine Law with respect to its handling of Gross's third request, we reject the proposition that the AGO can be viewed as having “retaliated” against Gross in a constitutional sense by acting in a statutorily authorized manner. For these reasons, the trial court did not err in granting summary judgment in favor of the AGO on Count IV of Gross's petition. Point VI is denied.
Conclusion
For the foregoing reasons, we affirm the trial court's judgment.
W. Douglas Thomson, Judge, concurs in the majority opinion
Alok Ahuja, Presiding Judge, dissents in a separate dissenting opinion
Footnotes
Eric Schmitt was the Missouri Attorney General from January 2019 to January 2023.
As some of Gross's points on appeal concern the trial court's grant of summary judgment in favor of the AGO, we will provide more specific details of the uncontroverted material facts contained in the Rule 74.04(c) summary judgment record during our review of those points.
Gross is a licensed attorney in the State of Missouri and has represented himself in this litigation.
Count I alleged the AGO violated Chapter 610 by improperly closing records responsive to Gross's third request. Count II alleged the AGO violated Chapter 610 by failing to produce records related to Gross's first request by “the earliest time and date.” Count III alleged the AGO failed to “provide a detailed explanation of the cause for delaying production of public records” responsive to Gross's first request.
The only information provided to this Court related to this hearing is found in a single docket-entry indicating the trial court took the Motion for Protective Order under advisement. Curiously, on March 3, 2022, Gross filed a Motion for the Court to Reconsider its Order Requiring Depositions by Written Questions. However, the record includes no such order entered by the trial court. It appears from the AGO's opposition to Gross's motion to reconsider that during the hearing on the Motion for Protective Order the trial court may have “suggested that [Gross] could depose Defendants Smith and Werdehausen via written questions in lieu of oral testimony.” No order to that effect was ever issued based on our review of the record that Gross has provided to us.
Gross argued that the trial court should strike the AGO's Motion for Summary Judgment because it was “untimely.” His memorandum in support of this motion restated this argument, but provided no law in support of it – stating simply that he had “filed a writ petition with the Western District Court of Appeals seeking to reopen discovery.”
The trial court also denied Gross's motion to strike and request for in camera review of documents.
All Rule references are to the Missouri Supreme Court Rules 2022, unless otherwise noted.
As indicated earlier, based upon the contents of the AGO's opposition to Gross's Motion to Reconsider the Trial Court's Order Requiring Depositions by Written Questions, we surmise that Gross is referring to comments possibly made by the trial court during the hearing on the Motion for Protective Order. However, due to Gross's failure to provide us with a transcript of that hearing, we are unable to confirm the basis of his assertions.
Relying on State ex rel. Houser v. Goodman, 406 S.W.2d 121, 125-27 (Mo. App. 1966) for support, Gross argues that the trial court lacked the authority to issue a protective order because deposition notices had not been issued to Werdehausen and Smith, and therefore, the AGO's motion for a protective order was not seasonably made. Houser has no relevance here because it addressed a supreme court rule related to protective orders that no longer exists in the same form. At the time of Houser, Rule 57.01(c) stated, in relevant part:
After notice is served for taking a deposition, upon motion seasonably made by any party or by the person to be examined and upon notice and for good cause shown, the court in which the action is pending may ... make any other order which justice requires to protect the party or witness from annoyance, embarrassment, or undue expense, oppression, or to compel a witness or party to make discovery.
(emphasis added). Under the current applicable rule, the issuance of a deposition notice is not a condition precedent to the filing of a motion for protective order. Rule 56.01(c).
Werdehausen sent a second communication to Gross informing him that the AGO needed additional time to process his request and that he should now expect to inspect the records responsive to his first request on February 19, 2021.
In the argument portion of his briefing, Gross quotes Gross v. Parson, to support his argument that a public governmental body must provide a requestor with “the exact calendar date upon which [the requestor] could inspect the requested records[.]” 624 S.W.3d 877, 889 (Mo. banc 2021) (estimate of 120 business days to produce records was not sufficient “earliest date and time” as required by section 610.023.3). Gross omits the first sentence of the quoted paragraph which states: “[t]he Governor's Office did not provide the ‘earliest date and time’ the records would be available for inspection because it conditioned its response on Mr. Gross's payment of attorney review time.” Id. (emphasis added). The Court did not explicitly take issue with the more general “120 business days” but rather, that the timeframe was conditioned upon Gross's payment of attorney review time. Accordingly, we do not find Parson to be instructive here. And, as more fully explained in this opinion, we do not interpret section 610.023.3 as establishing an unalterable deadline for the production of the records.
Gross forfeited his opportunity to contest the “accuracy” of Werdehausen's explanation when he failed to respond to the AGO's Motion for Summary Judgment. See Rule 74.04(c)(2) (failure to respond to a motion for summary judgment admits the truth of the uncontroverted material facts).
The flaws in the dissent's approach are easily revealed. For example, under such a rule, a document created twenty years ago in the face of a “substantial likelihood” of litigation and having an undeniably “clear nexus” to that possible litigation would remain closed today despite the absence of any credible possibility of litigation. Conversely, a document created six months ago without any contemplation of possible litigation, would be forever open even if litigation was later initiated and the document went to the very core of that pending legal dispute.
The dissent's effort to limit section 610.021(1) to documents created because of actual or potential litigation, is not consistent with the language of the provision. The relevant language only requires that the document “relate to...legal actions, causes of action or litigation involving a public governmental body[.]” Id. (emphasis added). A document can plainly “relate to” actual or potential litigation even if its creation was not directly instigated by that litigation.
For instance, the dissent's reliance on Weeks v. St. Louis County, 696 S.W.3d 333 (Mo. banc 2024) is misplaced as it does not support its position that a document acquires its permanent status at the time of its creation. In Weeks, St. Louis County refused to disclose identifying serial numbers of individual police officers involved in particular traffic stops by arguing that the information could subject the officers to negative performance reviews or disciplinary action and was therefore closed under 610.021(3) (involving records relating to the “hiring, firing, disciplining or promoting of particular employees”). Id. at 342. The Supreme Court rejected this argument explaining that “the public governmental body must show the record in question relates directly to or has a clear nexus to the invoked exemption” and the county had only proffered a possibility that the officers could face employment action based upon their conduct reflected in the documents. Id. at 342. Significantly, the Supreme Court did not declare that the records could not be closed in the future if employment actions were initiated or substantially likely to be initiated against the officers.
“A record that is not by its inherent nature ‘related to’ litigation does not become so merely because it may be discoverable or admissible in litigation.” Wyrick v. Henry, 592 S.W.3d 47, 57 (Mo. App. W.D. 2019). While we hold that the records sought in Gross's third request are subject to closure under section 610.021(1), the potential discoverability of those records in litigation is a separate question which is not addressed by this opinion.
While this Court stated in Wyrick that “[a] record's inherent nature is a constant,” the dissent goes awry when it concludes that a record's status as being “relate[d] to...legal actions, causes of action or litigation” is permanently forged at its creation. The dissent conflates a document's “inherent nature” with the existence of a “clear nexus” to the threatened litigation. These are separate and distinct concepts that operate independent of each other. In other words, a document's “inherent nature” may be established at its inception but whether that “inherent nature” has a “clear nexus” to active or potential litigation is a question decided at the time of the document request. In this instance, the “inherent nature” of the search records sought through Gross's third request is the means and methods utilized by the AGO to respond to his first request – the specific conduct that Gross threatened to bring litigation over.
Gross's arguments that the AGO was not entitled to summary judgment without an evidentiary hearing or in camera review of the documents reflects a miscomprehension of summary judgment practice. The failure by Gross to respond to the AGO's statement of uncontroverted facts rendered those facts admitted for purposes of evaluating the AGO's motion for summary judgment. Gross discounts the import of this result when he argues that, notwithstanding those admitted facts, the trial court was nevertheless required to conduct an evidentiary hearing and/or review the documents in camera. That is not how summary judgment works. Rather, if, as we have found, the uncontroverted facts established that the AGO was entitled to a judgment as a matter of law, no additional evidentiary effort is required.
In its briefing, the AGO questions whether a “retaliation” claim such as this is recognized in Missouri. Although we find nothing in our jurisprudence to indicate that Article I, Section 8 of the Missouri Constitution could serve as a pillar on which Gross's specific “retaliation” claim could stand, we need not resolve that question today.