The Cole County Courthouse, in Jefferson City (Annelise Hanshaw/Missouri Independent).
The Department of Social Services “knowingly and purposefully” subverted the state’s open records law to gain the upper hand in litigation, a Missouri judge ruled Monday.
Cole County Circuit Judge Jon Beetem determined the department violated the Sunshine Law by wrongfully denying a records request because of the identity of requester and not the contents of the records.
The department also took months to respond to the request without a reasonable justification, Beetem ruled.
A software company and former state vendor, HHS Technology, submitted the records request and filed the Sunshine lawsuit.
Beetem in his decision ordered the department to hand over the records and set a hearing for Oct. 18 to consider penalties. HHS is entitled to civil penalties of up to $5,000 plus reasonable costs and attorneys’ fees.
The Department of Social Services declined to comment, citing the ongoing litigation.
HHS Technology was involved in years of litigation against the state for breach of contract and Beetem awarded the company more than $23 million in August 2022, over its work building a fully-integrated system for managing DSS programs including Medicaid.
The records request, submitted in April 2022, was for documents showing how the state requested and allocated public money for its Medicaid system and related communication about the competitive bidding process.
“These are prime examples of open records the Sunshine Law was intended to allow the public to access,” Beetem wrote, calling the records “indisputably open.”
The department acknowledged receiving the request but then, despite repeated inquiries, the company heard nothing for months.
Missouri Sunshine Law requires government agencies to respond to requests “as soon as possible.” They must provide the records within three days or explain the delay and provide a timeline for predicted fulfillment of the request.
The department decided the documents would be closed sometime in October, according to the decision. But the company did not hear back from DSS until February 2023.
At that point, nearly a year after the request was submitted, the state formally denied it and refused to turn over records.
The state said the documents were exempt from the Sunshine Law because they were related to ongoing litigation.
The litigation exception to Sunshine Law carves out records related to the nexus of ongoing litigation. Records must be inherently connected to litigation to qualify.
Beetem ruled the state’s interpretation of the litigation exemption was inappropriately broad and would justify closing any records that could be potentially subject to litigation in the future.
Beetem said the department “intentionally violated the Sunshine Law to impermissibly gain an advantage in the…litigation.”
The agency identified 570 documents responsive to the request that it deemed closed, according to the decision.
Eleven of those were privileged communications with counsel.
But “none of the remaining 559 records at issue is a legal file, memorandum, or work product generated by the Department’s counsel,” Beetem wrote.
And DSS “did not close the 559 at-issue records based on their contents,” he added.
“Rather, they closed the records based on the identity of the requester (HHS) and their belief that HHS desired these documents for use in the…litigation.”
Last year, Beetem ordered the state to pay more than $240,000 in legal fees as part of a ruling that found the attorney general’s office “knowingly and purposefully” violated open records law while it was being run by now-U.S. Sen. Josh Hawley.
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