(Republican state Rep. Craig Fishel of Springfield was told he must pay nearly $200,000 to obtain records from his local school district (Photo credit: Getty Images).
Searching Springfield Public Schools’ records for evidence the district is teaching critical race theory will take almost four years and require a deposit of $179,000, according to the district’s response to a Sunshine Law records request from a state lawmaker.
The costliest part of that effort, the district contends, is to examine each of the 3,500 standalone computers used by district employees. The district states each search will take two hours. If only one information technology employee is assigned to the task, doing nothing else 40 hours per week, the searches would be completed in 3.4 years.
Searching the district’s email and networked servers, instruction system and other records would, approximately seven more months to the work time required.
That portion of the request alone would require a deposit of $170,240, at the rate of $24.32 an hour, the district’s Custodian of Records Tammi Harrington wrote to Republican state Rep. Craig Fishel of Springfield.
“Please let us know if you wish the district to search for any of the possible public records,” Harrington wrote. “If so, we will need to have a deposit of the amount required before we begin the search.”
The charge is an insult, Fishel said in an interview with The Independent.
“The bottom line is that this is a slap in the face that says you are not relevant,” Fishel said.
Fishel said he will ask House Speaker Rob Vescovo to authorize a subpoena for the records.
The district, however, said through a spokesman that the charge is reasonable given the scope of Fishel’s request. The district is trying to be responsive but must seek reimbursement when records requests require “an inordinate amount of time and resources to fulfill,” spokesman Stephen Hall wrote in an email.
Springfield Public Schools wants to work with Fishel to understand and fulfill his request, Hall wrote.
“As currently drafted, the request is extraordinarily broad in scope and has the potential to divert hundreds, if not thousands, of hours of district staff time to search and review thousands of pages of documents,” Hall wrote.
Fishel’s request asked for “all documents relating to Springfield Public Schools teacher and/or staff, including contract employees, Professional Development Training, Student Curriculum” with any of 22 search terms. Those terms included “critical race theory” and “The 1619 Project,” both targets of conservative outrage, as well as other terms from the national debate over race, including “Black Lives Matter,” white privilege,” “social justice” and “diversity, equity and inclusion.”
Schools have a duty to teach history, Fishel said, and lessons about past segregation and racism, nationally and in Missouri, have a place in the classroom. But, he added, he objects to teaching children that racism is at the root of modern issues.
“I have grandchildren in the school system,” Fishel said. “I want them to understand and learn about all the different cultures that are out there but I don’t want to pit one race against another. Let’s teach about diversity, but not one against the other.”
Fishel sent his request in early September. He did so after receiving a copy of material handed out at a teacher training session that included the term critical race theory and “has the matrix about all the different ways you can discriminate.”
He received it, he said, after Springfield Superintendent Grenita Lathan denied the district is using critical race theory in its curriculum.
Lathan made the statement in an Aug. 5 address to Springfield-area business and civic leaders, the Springfield News-Leader reported.
“Help me clear up the misunderstanding,” Lathan said. “When I tell you that a curriculum with a focus on critical race theory is not being taught in our classrooms, believe it.”
Price of access
The Missouri Sunshine Law allows, but does not require, public agencies to charge fees to search for records and copy them to fulfill document requests. The fees are supposed to only cover the costs of locating and delivering the records.
For example, an agency can charge 10 cents a page for paper copies of documents, but only the cost of media such as compact discs or thumb drives for records delivered electronically.
Research and duplication time can be billed at the pay rate of the employee doing the work, with the caveat that the charges reflect use of “employees of the body that result in the lowest amount of charges for search, research, and duplication time.”
Agencies are allowed to ask for money up front to fulfill Sunshine Law records requests. But the courts are coming to view responses that demand enormous up-front deposits to begin searches as a deliberate tactic of delay and discouragement.
In a 2019 decision, Circuit Judge Jeff Harris found that the University of Missouri had violated the law by asking for $82,000 to deliver records on the treatment of research animals.
“The cost estimate in this case was tantamount to a denial of the request,” Harris wrote.A
The university in May 2020 agreed to pay $175,000 in attorney’s fees to the lawyers who prosecuted the case.
In another decision delivered in July 2020, Cole County Circuit Judge Patricia Joyce ordered the Department of Health and Senior Services to pay a $10,000 fine and $137,655 in attorney’s fees after demanding $1.49 million for lists of Missouri births and deaths from 1910 to 2015.
Legal work in the case revealed the department deliberately made the demand as large as possible to force delays that would allow it to seek a change in state law that would close the records. One method was to add benefit costs, such as health insurance, to the pay rate of the employee and to add an administrative cost for supervision of the employee.
The Supreme Court has been pretty clear and it said specifically about the requirement to separate material that is public and closed that the obligation rests with the government regardless of whether a Sunshine request is made or not.
– Attorney Elad Gross
The price of the violation will increase. The state lost an appeal, and Bernie Rhodes, an attorney with Lathrop GPM who handled the case against the state health department will be submit his costs soon to the Cole County Circuit Court.
Complaints about large demands from public agencies are becoming more frequent, Rhodes said.
“I don’t know how many clients will call me up and explain an outrageous position and ask what we can do about it,” Rhodes said. “The only way now to get many governmental agencies to comply with the law is to sue them.”
In its response to Fishel, Springfield schools indicated that it did not know if it would find any records with the terms listed in his request. After the search, the response stated, the district would begin retrieving them and removing any non-public information by redaction.
The redactions, Hall wrote to The Independent, will be made by an information technology employee and the time would be charged to Fishel.
The charges will be assessed despite a requirement in the Sunshine Law that public agencies separate public records from records exempt from disclosure. In a June 29 decision, the Missouri Supreme Court ruled that Gov. Mike Parson’s office violated that provision by charging for an attorney to review all records prepared for release.
“This obligation to separate exempt and nonexempt materials exists regardless of any particular request for public records,” the opinion stated.
The ruling, Hall wrote, only applies to charges for attorneys to review records and make the redactions. The court “only prohibited a public governmental body from passing the cost of redacting public records along to the requesting person when the costs constituted attorney time…,” he wrote.
Elad Gross, an attorney and former Democratic candidate for attorney general, filed the lawsuit against Parson. While he sees how the specific action he challenged could create some confusion, the message from the court is for agencies to maintain their records in compliance with the law.
“The Supreme Court has been pretty clear and it said specifically about the requirement to separate material that is public and closed that the obligation rests with the government regardless of whether a Sunshine request is made or not,” Gross said.
Fishel said he will consider the response and ways to reduce the cost, although he said that he does not want to limit his request.
“That is their doorway to leave things out,” he said.
The district is willing to work with Fishel to narrow the request and reduce the projected cost, Hall wrote to The Independent. But if he does not, the cost estimate will stand, Hall added.
“If he wants all of the servers searched by the district,” Hall wrote, “he has been given an estimate of the cost and the method of calculation tailored to each server.”
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