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Kim Gardner's office ordered to pay $5,000 for failing to respond to lawsuit

A Missouri judge on July 28, 2020, faulted Circuit Attorney Kimberly Gardner's office for "reckless, dilatory and intentional refusal to timely file a responsive pleading" in a lawsuit after being given an additional 30 days to do so.

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By JOEL CURRIER | St. Louis Post-Dispatch | Published: August 1, 2020

ST. LOUIS (Tribune News Service) — The latest violation of the Sunshine Law by the St. Louis Circuit Attorney's Office will cost city taxpayers more than $5,000.

A St. Louis judge Friday ordered Circuit Attorney Kimberly Gardner's office to pay the civil penalty to John Solomon, a Fox News contributor. He sued the office last year alleging it failed to respond to a request for records of contacts with key players during criminal investigations of former Gov. Eric Greitens in 2018.

Circuit Judge Christopher McGraugh found Gardner's office also failed to respond in time to Solomon's lawsuit and ordered the office to pay Solomon's attorney's fees. Gardner is not personally responsible to pay the fine.

McGraugh cited a decision earlier this year in the Post-Dispatch's 2019 lawsuit in which the Circuit Attorney's Office was found to have violated the Sunshine Law for refusing to provide copies of its contracts with outside vendors.

A spokeswoman for Gardner could not be reached Friday but has previously said the office would respond "in the context of the litigation."

McGraugh on Tuesday ruled in favor of Solomon who sued Gardner's office alleging a failure to respond to his requests for records of Gardner's contacts with staff and other key players in the 2018 invasion of privacy investigation of then-Gov. Eric Greitens. Those people include Missouri Times publisher Scott Faughn, Clayton lawyer Albert Watkins, billionaire mega-donor George Soros and former state Reps. Stacey Newman and Jay Barnes.

In Tuesday's ruling, McGraugh signed an order faulting Gardner's office for "reckless, dilatory and intentional refusal to timely file a responsive pleading" in Solomon's lawsuit after being given an additional 30 days to do so. 

Solomon's lawyer, Dave Roland of the Freedom Center of Missouri, said the effect of McGraugh's ruling is that "these were knowing and purposeful violations" of the Sunshine Law.

"They have pulled out every stop to avoid acknowledging whether or not the documents actually exist," Roland said. "And their refusal to even answer the lawsuit just blows my mind. I can't imagine what might be in these records that would be so damaging, so damning that it's worth what they're doing to try and obscure them. I'm completely mystified."

He said "it's frustrating" to have to sue for public records but hopes such court rulings remind officials at all levels of Missouri government to comply with open records laws.

The Sunshine Law, Missouri's open records law, requires governments to respond to requests for access to public records within three days. The law requires that exemptions from disclosing public records must be "strictly construed" to promote a public policy of openness.

A lawyer for the Circuit Attorney's Office in June and July filed motions to dismiss Solomon's suit saying Eula Simmons, the office's custodian of records, never received Solomon's records request.

Solomon "failed to ascertain the proper recipient of his Sunshine Law Request," Assistant Circuit Attorney Lopa Blumenthal wrote. Solomon's "sole basis for asserting Respondents violated the Missouri Sunshine Law arise from his mistaken belief that he is entitled to documents that are privileged or constitute attorney work product, and are closed records ..."

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