ELAD GROSS v. ERIC SCHMITT (2025)

DISSENTING OPINION

Because I would reverse the circuit court's judgment in part, I respectfully dissent from the majority's across-the-board affirmance.

I agree with the majority's rejection of the bulk of Gross’ claims. I disagree, however, with the majority's denial of Gross’ third Point, which argues that the Attorney General violated the Sunshine Law when he refused to produce any records in response to Gross’ third Sunshine request. Gross’ third request asked for documents “showing how the Missouri Attorney General's Office searched for records” in response to one of Gross’ earlier Sunshine requests.

The majority concludes that the Attorney General's Office properly closed all of its search-related records under § 610.021(1)¹ (“Exemption 1”), because those records related to “[l]egal actions, causes of action or litigation involving a public governmental body ․” The majority reaches this result because, after the Attorney General's Office had fully responded to Gross’ first request, Gross threatened to sue the Attorney General over his purportedly inadequate response to that request. Contrary to the majority, I do not believe that records generated in responding to Gross’ first Sunshine request could become “relate[d] to ․ litigation” because of events occurring after those documents were created. Moreover, although the majority emphasizes that the search records “go to the very core of” Gross’ threatened lawsuit, that cannot justify invocation of Exemption 1, since we have explicitly held that documents are not “relate[d] to ․ litigation” simply because they may be relevant – even highly relevant – to threatened litigation. Instead, the inherent nature of the records must bear a clear nexus to actual or threatened litigation. Records which were created at a time when there was no substantial likelihood of litigation cannot be “relate[d] to ․ litigation” in the relevant sense.

The Attorney General separately contends that the search records fall within Exemption 1 because they constitute “legal work product.” That argument fails, however, because the Attorney General made no showing that any of the records were created as part of an attorney's effort to prepare for future litigation.

Discussion

The Missouri General Assembly has broadly declared that “[i]t is the public policy of this state that meetings, records, votes, actions, and deliberations of public governmental bodies be open to the public unless otherwise provided by law.” § 610.011.1. Pursuant to this policy, the Sunshine Law specifies that “[p]ublic records shall be presumed to be open unless otherwise exempt pursuant to the provisions of this chapter.” § 610.022.5. The legislature went further, and directed that the provisions of the Sunshine Law “shall be liberally construed and their exceptions strictly construed to promote th[e] public policy” favoring open government. § 610.011.1. As the Missouri Supreme Court only recently declared, “[t]his Court has long recognized section 610.011's command and has required the exemptions to disclosure in section 610.021 to be strictly construed to give effect to the public policy of the Sunshine Law.” Weeks v. St. Louis Cnty., 696 S.W.3d 333, 342 (Mo. 2024) (citation omitted).

Gross’ third Point requires us to construe and apply one of the exceptions to the Sunshine Law's broad policy favoring the openness of governmental records. That exception, which I refer to as “Exemption 1,” provides in relevant part:

[A] public governmental body is authorized to close meetings, records and votes, to the extent they relate to ․:

(1) Legal 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. ․ Legal work product shall be considered a closed record ․

§ 610.021(1).

I.

I cannot agree with the majority's conclusion that the Attorney General's Office adequately established that all of the documents responsive to Gross’ third Sunshine request were “related to litigation.” The summary judgment record fails to show that the Attorney General's Office faced any prospect of litigation at the time the documents responsive to Gross’ third request were created; nor does the record provide any basis to conclude that the responsive documents were created, or their contents influenced, because of a prospect of litigation. The best the majority can do is contend that the search records “go to the very core of” litigation which Gross threatened later. That is not enough.

We construed Exemption 1 most recently in Wyrick v. Henry, 592 S.W.3d 47 (Mo. App. W.D. 2019). In Wyrick, an individual was killed in a motor vehicle accident at an intersection in the City of Raytown. The individual's heir later sent a notice of claim to the City pursuant to § 82.210, providing the particulars of the accident, and notifying the City that the heir “will claim damages therefor from” the City. Id. at 51 n. 2.

Six months after the heir's threat of litigation, the heir's attorney submitted a Sunshine request to the City. The request sought the disclosure of records pertaining to: “complaints about the safety of, or accidents occurring at or around,” the relevant intersection; “the design of the intersection”; and “traffic or other diagnostic studies conducted at the intersection.” Id. at 51. The requested records would have been highly relevant in any suit seeking damages against the City. Under § 537.600.1(2), the City could only be held liable for injuries “caused by the condition of [its] property” if the heir could prove that “the dangerous condition created a reasonably foreseeable risk of harm of the kind of injury which was incurred,” and that

either a negligent or wrongful act or omission of an employee of the public entity within the course of his employment created the dangerous condition or a public entity had actual or constructive notice of the dangerous condition in sufficient time prior to the injury to have taken measures to protect against the dangerous condition.

Any documents responsive to the heir's Sunshine request would be central to the litigation he had threatened, since they would show: the reasonable foreseeability of injury at the intersection; whether City employees created the dangerous condition; and whether the City had notice of the dangerous condition.

Thus, in Wyrick, the relevant records request was made when litigation had already been explicitly threatened; and the requested records went “to the very core of” the City's potential liability in that litigation. We nevertheless held that the requested records were not exempt from disclosure under Exemption 1. We explained:

On appeal, [the City Clerk] now argues that the records requested by Wyrick were “related to” litigation, and thus possessed [a] “clear nexus” to litigation ․, because all of the records were relevant to establish one or more of the essential elements of the “dangerous condition” exception to sovereign immunity set forth in section 537.600(2). [The City Clerk] argues that “nexus” means a “connection between things,” and the records requested “are the very type of documents admitted as evidence to demonstrate a waiver of sovereign immunity and liability for a dangerous condition on public property.”

[The City Clerk's] argument mistakenly conflates what is discoverable or admissible at trial with whether a public governmental body is excused from the mandatory obligation to disclose public records. 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. At its core, [the City Clerk's] argument is a mere recast of the now discredited argument that section 610.021(1) can be applied to close public records to a requesting party who has threatened litigation. [The City Clerk's] argument would permit public governmental bodies to rely on the litigation exception “as a basis for closing virtually any record” in a manner that would “be inconsistent with the requirement that exceptions to the [Sunshine Law] be strictly construed.”

We conclude that public 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 as required by section 610.021(1), 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 Law, or by whether the public governmental body has been placed on notice of threatened litigation.

Wyrick, 592 S.W.3d at 56-57 (emphasis added; citations omitted).

In light of Wyrick, the Attorney General's Office cannot rely on Exemption 1 to withhold the search records Gross sought in his third request. The Attorney General's Office has pointed to nothing in the inherent nature of those documents which was related to litigation, and it has pointed to no threat of litigation which existed at the time those records were created (on or prior to the Attorney General's final response to Gross’ first request on February 18, 2021). It is not enough that the requested search records might be relevant in – or might even “go to the very core of” – any future lawsuit over the Attorney General's response to Gross’ first request. As Gross argues, Exemption 1 is inapplicable here, because from all that appears from the summary-judgment record, “[t]he records [he] requested [we]re produced for the administrative purpose of searching for records and fulfilling the mandates of the Sunshine Law, not for the purpose of litigation.”

The majority opinion quotes passages from Wyrick, but fails to heed the lessons that case teaches. Thus, although Wyrick explicitly says that the applicability of Exemption 1 “is not influenced by ․ whether the public governmental body has been placed on notice of threatened litigation,” the majority holds that the litigation exception is applicable here because “the AGO closed records responsive to Gross's third request after he had explicitly ‘threatened litigation’ over its handling of his first request.” If threats of litigation do “not influence[ ]” the application of Exemption 1, as Wyrick holds, why does the majority rely on precisely such threats to justify application of the litigation exception here?

The majority proclaims that Exemption 1 applies, because the records Gross sought in his third request “go to the very core of” Gross’ threatened lawsuit concerning the Attorney General's response to his first request. The majority assiduously avoids using words like “relevant,” “admissible,” or “probative” in describing the relationship between the search records and Gross’ threatened lawsuit. But despite the majority's careful phrasing, its statement that the search records “go to the very core of” a threatened lawsuit is nothing more than a finding of relevance and admissibility. Yet Wyrick emphatically holds that “public 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.” 592 S.W.3d at 57.

The majority opinion appears to hold that Exemption 1 is applicable because Gross’ Sunshine request was “related to” the litigation he was threatening to bring. But it is not the request which must “relate to” litigation to invoke Exemption 1; the records themselves must “relate to” litigation. The reasons for Gross’ third request are irrelevant.

As the majority acknowledges, in order to invoke Exemption 1 based on potential future litigation, “the governmental body should properly bear a heavy burden of demonstrating ․ a substantial likelihood that litigation may occur.” Tuft v. City of St. Louis, 936 S.W.2d 113, 118 (Mo. App. E.D. 1996) (quoted in Wyrick, 592 S.W.3d at 56). In finding a “substantial likelihood” of litigation here, the majority focuses on the wrong time period. The majority holds that the search records became “related to litigation” because of threats of litigation which Gross made after the search records had been created. The records responsive to Gross’ third Sunshine request all necessarily pre-date February 18, 2021, since that is the date on which the Attorney General provided its final response to Gross’ first request. Yet the earliest date on which the Attorney General's Office contends that Gross made a threat of litigation was five days later – on February 23, 2021.

Thus, the majority necessarily holds that the “inherent nature” of the requested search records changed after those records were created. But Wyrick forecloses the possibility that a public record's “inherent nature” could shift based on later threats of litigation. It holds:

[S]ection 610.021(1) focuses on the inherent nature of the record itself by requiring a “clear nexus” between the record sought and actual or threatened litigation. A record's inherent nature is a constant, divorced from the identity of the person requesting the record, and from whether a public governmental body has been placed on notice of possible litigation.

592 S.W.3d at 56 (emphasis added). If a record's inherent nature is “a constant,” it must exist at the time the document is created, and cannot change based on later events. The majority's reliance on post-document-creation events, to characterize the documents’ “inherent nature,” cannot be squared with Wyrick.

Strictly construing Exemption 1, as required by § 610.011.1, that exception should only apply where records are created in whole or in part because of actual or potential litigation. Section 610.021(1) provides that records are subject to closure where they “relate to ․ litigation.” The Supreme Court has construed the statutory phrase “related to” as requiring some causal connection between the relevant circumstances. In Goings v. Missouri Department of Corrections, 6 S.W.3d 906 (Mo. 1999), the Court interpreted what is now § 558.031.2, which provides that a criminal defendant sentenced to a term of incarceration is entitled to credit against their sentence for pretrial detention, “when the time in custody was related to that offense ․” In Goings, the Supreme Court held that time spent in custody by a defendant was “related to” a later offense, where the charging of the later offense led to the revocation of the defendant's parole for an earlier conviction. The Court explained that the later charge was “related to” the defendant's detention for the parole violation, because “[i]t was the [later] charge that resulted in revocation of his parole on his earlier” conviction. Id. at 908. Under Goings, “ ‘[r]elated to’ may be established where a subsequent offense is one of the causes of time in custody”; “some causal relationship between the inmate's time in custody and the offense must be established.” Pettis v. Mo. Dept. of Corr., 275 S.W.3d 313, 317 (Mo. App. W.D. 2008) (emphasis added; citations omitted).

Applying this precedent here, in order for particular records to be “relate[d] to ․ litigation,” there must be some causal relationship between the prospect of litigation and the creation or contents of the documents at issue. Here, however, the Attorney General's Office has identified no litigation with which it was concerned at the time it responded to Gross’ first Sunshine request. Because the summary judgment record does not establish that the search records were created because of the threat of litigation, or that their contents were influenced by the threat of litigation, the Attorney General has failed to establish a right to summary judgment under Exemption 1.

In Tuft v. City of St. Louis, 936 S.W.2d 113 (Mo. App. E.D. 1996), the Eastern District warned that,

taken to extremes, virtually any controversial matter could be the subject of potential litigation and thus cited as a basis for closing virtually any record. Such an open ended application of the litigation exception would indeed be inconsistent with the requirement that exceptions to the Act be strictly construed. Where the justification offered is potential ․ 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 (quoted in Wyrick, 592 S.W.3d at 56).

There are innumerable controversial programs and policies being implemented by our State government (including, e.g., governmental regulation of education; gaming; cannabis; firearms; the environment; the electoral process; or abortion). As Wyrick holds, if a record is subject to closure under Exemption 1, it is subject to closure to any requester. It is alarming to think that, under the majority's rationale, all records concerning the implementation of such controversial government programs would be closed to all Missouri citizens, and to all journalists, because anyone had threatened litigation concerning the program's operation. The “open ended application” of Exemption 1 adopted by the majority, which authorizes the closure of any records which may “go to the very core of” litigation threatened after the records’ creation, would result in precisely the sort of “extreme[ ]” consequences of which Tuft warned.

II.

Although the majority does not address the issue, the Attorney General has separately contended that the records responsive to Gross’ third request constitute “legal work product.” As discussed above, however, the Attorney General's Office has pointed to no prospect of potential litigation which existed at the time it was processing Gross’ first Sunshine request. Moreover, the Attorney General's Office has provided no details concerning the nature of any of the records it is witholding: who generated the responsive records; who had access to them; who requested their creation; or what subjects the records address. In these circumstances, a blanket claim of “legal work product” cannot be sustained.

“The work product doctrine is ‘an intensely practical [doctrine], grounded in the realities of litigation in our adversary system.’ ” Hill v. Wallach, 661 S.W.3d 786, 791 (Mo. 2023) (quoting U.S. v. Nobles, 422 U.S. 225, 238 (1975)). “The work product privilege precludes an opposing party from discovering materials created or commissioned by counsel in preparation for possible litigation. In addition, it protects the thoughts and mental processes of the attorney preparing a case.” State ex rel. Ford Motor Co. v. Westbrooke, 151 S.W.3d 364, 367 (Mo. 2004) (cleaned up); see also State ex rel. Moore v. Brewster, 116 S.W.3d 630, 638 (Mo. App. E.D. 2003).

To properly invoke the protection for work product, a party must provide some information concerning the nature of the documents at issue, and the reasons for the documents’ creation. In the context of the assertion of work product protection for litigation discovery, our Court has explained:

Blanket assertions of work product are insufficient to invoke protection. In order to invoke work product protection, the party opposing discovery must establish, via competent evidence, that the materials sought to be protected (1) are documents or tangible things, (2) were prepared in anticipation of litigation or for trial, and (3) were prepared by or for a party or a representative of that party. “Competent evidence” may include a privilege log and affidavits from counsel. The privilege log may identify documents individually or by categories if that provides sufficient clarity for the court to rule on the asserted privilege claim. Limited discovery by deposition or otherwise regarding work product may be necessary. Through this process, the parties develop a factual record from which the trial court can render an informed decision.

State ex rel. Kilroy Was Here, LLC v. Moriarty, 633 S.W.3d 406, 414-15 (Mo. App. E.D. 2021) (cleaned up).

In this case, as discussed above, the Attorney General's Office has identified no litigation which was pending, or threatened, at the time it was processing Gross’ first Sunshine request. That alone is fatal to its claim that all search records constitute “legal work product.” But in addition, the Attorney General's Office has provided no information concerning the nature of the search records it is closing. There is no basis in the present summary-judgment record to conclude that the search records Gross requested were “created or commissioned by counsel in preparation for possible litigation.” Westbrooke, 151 S.W.3d at 367

In Gross v. Parson, 624 S.W.3d 877 (Mo. 2021), like here, Gross propounded a Sunshine request to the Governor's Office, seeking records relating to its processing of one of his earlier Sunshine requests. Gross later contended that the Governor's Office had violated the Sunshine Law when it redacted portions of the responsive records. The Supreme Court held that Gross had stated a claim for a Sunshine Law violation. Notably, the Court rejected the Governor's claim that the redactions were justified to protect attorney-client privileged communications and attorney work product. The Court held that the Governor's claim of attorney-client privilege, and attorney work product, could only be assessed after development of the facts concerning the records’ creation:

[T]he Governor's Office says, “the second Sunshine [L]aw request clearly involved privileged and closed communications, since the requested documents involved multiple attorneys.” The Governor's Office is correct that the Sunshine Law authorizes redaction in certain circumstances, such as for privileged attorney-client communication. But that general authorization does not mean the redaction that took place in this case was proper. Indeed, not every communication with an attorney is a privileged communication. “To be privileged the communication must relate to attorney-client business and not to extraneous matters.” The Governor's Office was not entitled to judgment on the pleadings simply because it noted the Sunshine Law generally permits redaction of attorney-client privileged information. Whether redaction was proper here is a fact question that cannot be resolved on a motion for judgment on the pleadings.

Id. at 890 (citation omitted). Thus, the mere involvement of attorneys in responding to a Sunshine request does not make search records privileged, without more information concerning the circumstances surrounding the records’ creation.

The Attorney General's Office cites to a slew of federal district court cases which have refused to permit parties to engage in “discovery on discovery” – namely, discovery which seeks to explore the manner in which an adverse litigant responded to earlier discovery requests. But an opposing party's discovery efforts plainly “relate to litigation,” and constitute attorney work product, because the earlier discovery efforts occurred during the litigation itself. The “discovery on discovery” caselaw has no relevance here, where there was no litigation pending – or apparently, even anticipated – at the time the Attorney General's Office responded to Gross’ first Sunshine request. I note that in a number of federal cases decided under the Freedom of Information Act (“FOIA”), courts have addressed requests for records relating to the government's processing of earlier FOIA requests, without ever suggesting that such “FOIA on FOIA” requests are inherently improper. See, e.g., Machado Amadis v. U.S. Dep't of State, 971 F.3d 364, 368-69 (D.C. Cir. 2020); Shapiro v. U.S. Dep't of Justice, 239 F. Supp. 3d 100, 112–13 (D.D.C. 2017); Carlson v. U.S. Postal Serv., 15-CV-06055-JCS, 2017 WL 3581136, at *17-*20 (N.D. Cal. Aug. 18, 2017).

Even if the Attorney General's Office had made some showing that its efforts to respond to Gross’ first Sunshine request were influenced by the prospect of litigation, it would face an additional obstacle: those documents were undeniably also created for a non-litigation governmental purpose – to respond to a citizen's request for records under the Sunshine Law. Where documents may serve “dual purposes” – namely, a litigation-related and a non-litigation-related purpose – “[t]he focus is on whether specific materials were prepared in the ordinary course of business, or were principally prompted by the prospect of litigation.” 8 Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 2024 (3d ed. 2006) (footnotes omitted).

In circumstances where a document serves a dual purpose, that is, where it was not prepared exclusively for litigation, then the “because of” test is used. Dual purpose documents are deemed prepared because of litigation if “in light of the nature of the document and the factual situation in the particular case, the document can be fairly said to have been prepared or obtained because of the prospect of litigation.” In applying the “because of” standard, courts must consider the totality of the circumstances and determine whether the “ ‘document was created because of anticipated litigation, and would not have been created in substantially similar form but for the prospect of litigation.’ ”

United States v. Richey, 632 F.3d 559, 567–68 (9th Cir. 2011) (citations omitted); see also, e.g., In re Grand Jury 2021 Subpoenas, 87 F.4th 229, 252-53 (4th Cir. 2023) (to justify work product protection, litigation must be “the ‘driving force behind the preparation of each requested document. ․’ ” (citation omitted)).

In Carlson v. United States Postal Service, 15-CV-06055-JCS, 2017 WL 3581136 (N.D. Cal. Aug. 18, 2017), the Court applied this “dual purpose” doctrine to a FOIA request seeking documents generated while responding to an earlier FOIA request. The Court concluded that work product protection was inapplicable, because the relevant search records were “created in the normal course of responding to [the requester's] FOIA requests and not ‘because of’ anticipated litigation,” and “would have been created in substantially the same form regardless of whether litigation was anticipated.” Id. at *20.

In the present case, even if a prospect of litigation existed, and influenced the Attorney General's Office, at the time it responded to Gross’ first Sunshine request, there has been no showing that the nature of the documents the Attorney General's Office created in that search were influenced by the prospect of litigation.

Conclusion

For all of these reasons, I would reverse the circuit court's grant of summary judgment, to the extent that the court concluded that all documents responsive to Gross’ third Sunshine request were protected from disclosure by § 610.021(1). To that extent, I respectfully dissent from the majority opinion.

FOOTNOTES

1.   Statutory citations refer to the 2016 edition of the Revised Statutes of Missouri, updated by the 2024 Cumulative Supplement.

Alok Ahuja, Judge