Reclaim The Records has won again! The following announcement was written by Brooke Schreier Ganz, the President and Founder of Reclaim The Records:
RECLAIM THE RECORDS WINS LONG-RUNNING MISSOURI SUNSHINE LAW BATTLE FOR FREE PUBLIC COPIES OF THE STATE BIRTH AND DEATH INDEX!
JUDGE AWARDS ATTORNEYS FEES, AND ALSO ORDERS FINES ASSESSED AGAINST THE MISSOURI DEPT OF HEALTH AND SENIOR SERVICES FOR FOUR SEPARATE ‘KNOWING AND PURPOSEFUL’ VIOLATIONS OF THE SUNSHINE LAW
JUDGE REPORTS ON AGENCY’S ‘SECRET PLAN’ TO ILLEGALLY WITHHOLD
GENEALOGICAL RECORDS FROM THE PUBLIC
Hello again from Reclaim The Records! We’re your favorite little non-profit organization that picks fights with government agencies, archives, and libraries for better public access to genealogical records and historical materials. And we’re back in your mailbox today to announce that we’ve just won yet another lawsuit! And oh boy, did we win this one! 🎉
We’re thrilled to announce today that in our long-running lawsuit against the Missouri Department of Health and Senior Services, we’ve been awarded a total legal victory against the agency by Judge Patricia S. Joyce of the Cole County, Missouri circuit court, in our motion for summary judgment. This means that we never even had to go to trial, because the uncontroverted facts in the case, including facts admitted or undisputed by the agency itself, were so overwhelmingly in our favor that the judge awarded us a victory on their merits.
We’ve posted the PDF of the judge’s order on our website, and we recommend reading it! It lays out the story from beginning to end, and is a lot of fun, for a legal document.
You should also check out our long previous newsletter about the backstory behind the case. Short version: we wanted to get a copy of the state birth index and death index, which seemed to be expressly allowed by Missouri’s law. But the state first tried to charge us $1.5 million dollars (!) for the data, and then when we successfully argued that price down, they abruptly denied the request entirely. So we sued them and whaddya know, it turns out that was all totally illegal.
SO, WHAT DID WE ALL WIN? PART I: THE RECORDS
We’ve won the first free public copy of the Missouri birth index for 1920-2015 and the Missouri death index for 1968-2015. These records, which are already stored as plain text in a state database and will not need a transcription project, are just basic finding aids to vital records; they’re not actual certificate copies. They include the given name, surname, and date of birth or death. These kinds of simple birth and death indices are widely available online for other states across the country, including for several states directly bordering Missouri. And yet the Missouri Department of Health and Senior Services (DHSS) fought us for four and a half years, fought hard and fought dirty, trying to keep these basic indices inaccessible to the general public…while they were also, perhaps not coincidentally, making money for the agency by selling copies of those same index files.
We haven’t received these records in-hand yet, but we will soon, and we’ll let everyone know just as soon as they’re searchable and downloadable. As always, the records we win will have no copyright and no usage restrictions and no paywall, because we at Reclaim The Records don’t do that kind of thing.
And earlier today, Missouri’s NPR posted a news story covering this legal win, pointing out that not only are these public index files hugely important for genealogical and historical research, but they’re also important for tracking recent COVID-19 pandemic deaths:
A pandemic, of course, was not on our mind back when we first started fighting for public access to this data back in early 2016, but the current situation does underscore how important it is that state departments of health be transparent with the public and the press about the crucial population data they hold.
Also, remember how Missouri’s DHSS originally tried to charge us $1.5 million dollars for the birth index and death index? Well, the judge ruled that we were entitled to these records for their actual costs, which wound up being $2,557.30. That’s about three tenths of one percent of their original estimate.
PSA: Never pay retail price for historical public records. 😉
SO, WHAT DID WE ALL WIN? PART II: THE FEES
And we didn’t just win the records in our lawsuit. We’re thrilled that the judge in this case also chose to award us our attorneys fees! As you might remember from some of our past cases, sometimes in a freedom of information suit you can win all the records but still not get the attorneys fees.
The exact dollar figure still has to be worked out in negotiations between our attorneys and the state over the next few weeks, but we believe that it will be in the low six figures. Note that this amount will be in addition to however many hundreds of thousands of dollars the state spent on their side internally by requiring and then stubbornly defending this case in the first place.
Fun fact: the Attorney General of Missouri who oversaw the majority of the handling of this case is now a United States Senator, Josh Hawley. Under his leadership, his office delayed and bounced this case around like a hot potato between five or more different Assistant Attorneys General, which is why it took so many years to come to a conclusion and consequently ran up such a large bill for attorneys fees. Those fees will now be borne by Missouri’s taxpayers, who probably had better things to spend their tax revenues on, such as the many other Sunshine Law cases lost while he was their Attorney General.
SO, WHAT DID WE ALL WIN? PART III: THE FINES
But wait, there’s more! Missouri is one of the very few states with a freedom of information law which allows for fines to be assessed against any state agency or official that knowingly and purposely breaks their state FOI law. These kinds of fines are rarely awarded in practice, though, because they require not only the determination that there wasn’t a good faith debate over the merits of a records request, but that there was a concerted effort by the agency to knowingly break the law and deny records to the public. And there has to be airtight documentation of this purposeful lawbreaking, too.
Well. We are thrilled to report that we were awarded fines! Judge Joyce found that the state broke the Sunshine Law on purpose, and that we had provided sufficient evidence, uncontroverted even by the agency. Heck, if you read her ruling, you’ll see such awesome sub-headings as “The Secret Plan to Deny the Sunshine Law Requests” and “DHSS’ Shifting Hourly Rate Charges” and so on. It’s kinda juicy.
For these four separate yes-they-really-did-it-on-purpose Sunshine Law violations by DHSS, we were awarded a total of $12,000! This means that even though we’re a non-profit, the state’s behavior was so over-the-top and inexcusable in responding to our requests that we accidentally turned a profit on our lawsuit. 😂
Our stalwart attorney in this case, Bernie Rhodes of Lathrop and Gage, is one of the most experienced Missouri Sunshine Law and media attorneys in the country, and he has said that he could only think of a couple of other instances of Sunshine Law litigants being awarded fines like this — and he couldn’t think of any other examples of multiple fines being awarded, as we were in this case. Reclaim The Records breaks records yet again!
TO SUM IT ALL UP
We won all the records for the public, we won our attorneys fees, we won fines even though that’s not common, we won multiple fines even that appears to be unheard of, we’re going to put all the data online for free use so it can never be locked up or withheld from the public again, and we are going to turn around and plow our newly freed-up time and money into new fights for more open records from more states and cities! 🥳
THANK YOU, THANK YOU
Thank you to our awesome attorneys Bernie Rhodes and Taryn Nash of Lathrop and Gage. If you ever find yourself in need of some records under the Missouri Sunshine Law, we totally recommend hiring them.
Thank you to the FOI-L e-mail listserve, run by the National Freedom of Information Coalition, who provided advice and originally helped us find those awesome attorneys for this case.
Thank you to the Merriam-Webster Dictionary, who was wound up being cited in a footnote on page 33 of the judge’s order for the definitions of “pay” and “rate of pay” and “fringe benefit”, to illustrate how the state of Missouri had ignored these obvious definitions when concocting their fake calculations when they tried to overcharge us for the records.
Thank you to NAPHSIS, who had not one, and not two, but multiple members of their creepy public records cartel, including one of their former executive directors and also their past president, show up in multiple documents we received in discovery in this case, with such blatantly illegal behavior (the “secret plan” referred to by the judge) that we were able to document those plans and consequently win these groundbreaking multiple fines against the state. We couldn’t have done it without you guys!
WHAT DO WE WANT? MORE RECORDS!
So yeah, we at Reclaim The Records are super-happy that we were able to liberate yet another state’s records for public use. And we have many more awesome records from many more cities and states planned for release!
But even when we win lawsuits like this one, it takes up a lot of our time, sometimes years of work, as in this case. And even when we do eventually win our attorneys fees, which isn’t guarateed even when we win records, we still have to put up the money for the lawsuits while we’re waiting for those cases to resolve.
But you know what, it’s worth it. We think it’s super-important to free this information, to bring public information back to the public, and we hope you do too. And if you agree, we’d really love to have your support. You can donate to our non-profit on our website, through our Facebook page, or by check:Reclaim The Records
905 Ventura Way
Mill Valley, CA 94941
From all of us at Reclaim the Records, thank you for your support!
In our next newsletter: OH DID WE MENTION THAT WE JUST WON ANOTHER LAWSUIT? Yes, another one! And we’ll tell you all about it soon. 😎