Missouri’s Sunshine Law: When Governmental Bodies Fail to Explain Denials of Public Record RequestsAugust 18, 2014
The Cole County Circuit Court has held that a public body's failure to cite grounds for non-production of public records waives the right to assert those grounds in litigation over the denial.
Missouri's Sunshine Law, Ch. 610 to the Missouri Revised Statutes, provides both media entities and the public with an important vehicle for staying abreast of state and local government. In general, it provides a presumptive right of access to all "public records" of all "public governmental bodies," state and local, subject to certain delineated exceptions, most of which are discretionary, not mandatory. In other words, in most cases, a public governmental body can choose to release records if it wants to, despite the ability under the statute to claim the record is exempt.
The statute sets forth in express terms its policy that access to public records is presumed and that exceptions to that access are narrowly construed. The Supreme Court once referred to this as the "tie breaker" provision requiring disclosure "when records fit equally well under two specific but opposite provisions of the Sunshine Law." (Guyer v. City of Kirkwood, 38 S.W.3d 412, 414 (Mo. 2001).)
The statute requires that requested records be produced as soon as possible, usually no more than three days, but permits extensions upon written explanation provided within three days. Where a request for records is denied, an important provision of the statute requires a public governmental body to provide, if requested, a written statement explaining the grounds for the denial and citing the specific provision of law supporting such denial. This provision is found in §610.023.4 of the statute.
But what happens if the public governmental body is sued under the statute for ignoring the request; or after it has denied the request without specifying the legal basis for denial or later seeks to assert different grounds for denial that were not asserted originally? That issue was recently explored by the Cole County Circuit Court in Jefferson City in a lawsuit by the American Civil Liberties Union (ACLU) against the Missouri Department of Corrections (DOC). (Case No. 12-AC-CC-00692.) The ACLU on behalf of a Missouri prisoner requested copies of certain public records from the DOC and included a request that if access was denied, that it identify the specific statutory grounds for the denial. The DOC denied the request citing a single basis – that the documents were exempt under §610.021(14) of the Sunshine Law, which exempts materials "protected from disclosure by law." The law prohibiting disclosure, according to the DOC's denial, was a federal regulation that prohibited disclosure of prisoner grievance proceedings. Later, after being sued and when it became evident that this federal regulation had been repealed, the DOC tried to argue additional grounds for not providing the documents.
The Circuit Court rejected this attempt to assert new grounds for nondisclosure, holding that the DOC had waived all defenses against disclosure except the exemption claimed in its response to the Sunshine Law request, which exemption was legally invalid. The Court said:
No Missouri court appears to have addressed waiver of defenses in the Sunshine Law context. Defendant's attempt to claim one exemption when it denies a citizen's request for records, and then claim additional exemptions after being sued for nondisclosure, is not supported by any reading of Ch. 610, nor does it comport with the public policy of the state.
The decision was not appealed. Although it may not have extensive precedential value for cases that follow, its reasoning is sound and persuasive. The statute is broadly designed to promote public access. Its requirements and time limits mean something and should not be ignored or overlooked. Most, not all, of the allowed exceptions are discretionary and not mandatory, and a public governmental body can choose to waive them and produce the records. It seems logical that failure to follow the statute's precepts as to records which may be, but are not required to be, closed can constitute waiver of the discretion to keep them closed. As stated by the Cole County Circuit Court, "permitting [a public governmental body] to assert additional reasons for denial after litigation commences … renders superfluous the statutory requirement of notice of the reasons for denial."
The additional reasons for closure cited after the lawsuit was filed were exemptions that were discretionary under the statute and not provisions of law that mandate confidentiality of the materials. The Court's opinion gives hint that if the aft-cited exemption is a mandatory one, the governmental body might have to pay a penalty for its violation of the Sunshine Law, but the requester may not get the sought-after materials that are closed by law. In that case, the point was moot, in that the late-asserted exemptions were discretionary and not mandatory.