Fulson v. Kansas City Star Co., WD

• Decision Date: 01 October 1991
• Docket Number: No. WD,WD
• Citation: 816 S.W.2d 297
• Parties: 70 Ed. Law Rep. 700 Sue FULSON, Dr. Sandra Walker, William DeFoor, Jr., Paul B. Ballard, James P. Bonadonna, Fred Heine, Dr. Julia H. Hill, Rev. Robert Stephens and Carl Struby, as Members of the Board of Directors of the School District of Kansas City, Missouri, Appellants, v. The KANSAS CITY STAR COMPANY, Respondent. 44248.
• Court: Missouri Court of Appeals

Page 297

816 S.W.2d 297

70 Ed. Law Rep. 700

Sue FULSON, Dr. Sandra Walker, William DeFoor, Jr., Paul B.

Ballard, James P. Bonadonna, Fred Heine, Dr. Julia H. Hill,

Rev. Robert Stephens and Carl Struby, as Members of the

Board of Directors of the School District of Kansas City, Missouri, Appellants, v. The KANSAS CITY STAR COMPANY, Respondent.

No. WD 44248.

Missouri Court of Appeals,

Western District.

Oct. 1, 1991.

Allan V. Hallquist, Shirley W. Keeler, Kansas City, for appellants.

W.H. Bates, Jonathan R. Haden, John E. Tyler, Kansas City, for respondent.

Before TURNAGE, P.J., and KENNEDY and BRECKENRIDGE, JJ.

KENNEDY, Judge.

This is a suit for a declaratory judgment. The members of the Board of Directors of the Kansas City, Missouri, School District filed the present suit against the Kansas City Star Company for a declaratory judgment, the aim of which was to resolve a dispute between the school board and the newspaper as to the newspaper's access to records and meetings of the district under the Sunshine Law, section 610.010-.030, RSMo, 1986. The defendant newspaper filed an answer and a "counter-request" for declaratory judgment.

The school board has denied newspaper access to various documents on the ground that such documents were district records, rather than school board records, because, as the school board explained, they were neither generated nor retained by the board. The board maintains that it, the school board, is the "public governmental body" to which the Sunshine Law applies, and not the district. Then they say that the records of the board are only those which are generated or retained by the board.

On the ground they are not "board records" but are "district records", the board (according to the Star's brief) has denied the Star's access to:

1. A service contract between the KCMSD and Donna Ziegenhorn, who was hired in 1988 to help prepare for the opening of the 1988-89 school year.

2. Friday Reports-Weekly status reports of the district's activities which former Superintendent of Schools George Garcia was required by contract to provide to the school board.

3. Reports concerning the regular activities of the KCMSD communications office.

4. Reports and records concerning security incidents and crimes reported or committed on the premises of district offices or schools including thefts of school funds and property.

5. Bi-monthly meetings and the monthly report of the Project Management Team, a joint venture of J.E. Dunn Construction Company and The Allied Companies. The PMT has contracted with the school district to provide services in connection with the court ordered capital improvements program. The monthly report details the progress of district construction projects and includes matters such as school closings, school site selections, and the transfer of students between schools.

6. Reports regarding asbestos inspections of district schools.

7. The district's plan for hiring magnet school students [sic].

8. Regular audit reports, prepared by the district's internal auditor, regarding each school's activity fund.

9. Expense reports of district administrators and employees.

The trial court was not asked to determine whether the Star was entitled to access to any of those records, and we are not informed whether there is a presently existing dispute between the parties with respect to any of them.

The school board and the Star have entered into a stipulation defining the issues presented by the case, upon which the court was asked to enter a declaratory judgment. The issues are as follows:

1. Is the School District of Kansas City, Missouri ("KCMSD"), a "public governmental body" as that term is defined in RSMo § 610.010(2)?

2. If the KCMSD is not a public governmental body, may the board of directors of KCMSD properly invoke the litigation exemption under § 610.021(1) to close meetings, records, or votes to the extent they relate to litigation to which the KCMSD, but not its board of directors, is a party?

(a) May the board of directors of KCMSD properly invoke the litigation exemption to close meetings, records, or votes relating to the desegregation litigation, to which the KCMSD, but not its board of directors, is a party? Does the desegregation litigation "involve" the board of directors, as opposed to the KCMSD, as that term is used in § 610.021(1)?

3. If the KCMSD is not a public governmental body, may the board of directors of KCMSD properly invoke the real estate exemption under § 610.021(2) to close meetings, records, or votes to the extent they relate to "leasing purchase or sale of real estate" by the KCMSD as opposed to its board of directors?

4. If the KCMSD is not a public governmental body, may the board of directors of KCMSD properly invoke the personnel exemption under § 610.021(3) to close meetings, records, or votes to the extent they relate to the "hiring, firing, disciplining or promoting" of any employee of the KSMSD, as opposed to employees of its board of directors?

5. What is the temporal scope of the litigation exemption under § 610.021(1)?

(a) When does "litigation" end for purposes of § 610.021(1)?

(b) In particular, when does Jenkins v. State of Missouri, et al., (the desegregation litigation) end for purposes of § 610.021(1)?

6. When may the board of directors of KCMSD, pursuant to the litigation exemption, § 610.021(1), close meetings, records, and votes pertaining to court-ordered remedies in the desegregation litigation?

7. When may the board of directors of KCMSD, pursuant to the litigation exemption, § 610.021(1), close meetings, records, and votes pertaining to the desegregation budget?

8. May the board of directors properly close reports and memoranda, such as Friday Reports, drafted by the superintendent of schools of other KCMSD administrators and sent to each member of the board, where those reports and memoranda are not reviewed and discussed at board meetings?

With respect to Issues 5, 6 and 7, the trial judge declined to make a declaration, holding there were "insufficient facts provided to resolve these issues." Neither party complains of the trial court's ruling.

The trial judge's reasons for withholding declaratory judgment on Issues 5, 6 and 7 lead also to the conclusion that there is no justiciable controversy upon which the court may rule with respect to the other issues presented.

This case does not present the kind of concrete factual situation upon which a declaratory judgment may issue. It calls instead for abstract declarations of law. Courts do not make abstract declarations of law. See Commonwealth Ins. Agency, Inc. v. Arnold, 389 S.W.2d 803 (Mo.1965); Nations v. Ramsey, 387 S.W.2d 276 (Mo.App.1965). Courts decide concrete cases. E. Borchard, Declaratory Judgments 40, 44 (1941) (citing United States v. West Virginia, 295 U.S. 463 (1935)). There must be a specific factual matrix for our declarations of law, for our decisions are anchored in the facts under consideration and are limited by those facts.

In other cases in which this and other courts have construed the Sunshine Law, there have been specific documents which the public governmental body wished not to disclose, and which the newspaper, or some member of the public, wished to gain access to. In Missouri Protection and Advocacy Services v. Allan, 787 S.W.2d 291 (Mo.App.1990) (mandamus), the document was the preliminary report of a review of Missouri's educational programs for handicapped children, furnished to Missouri Department of Elementary and Secondary Education by a division of the U.S. Department of Education. In Oregon County R-IV School District v. LeMon, 739 S.W.2d 553 (Mo.App.1987) (declaratory judgment), the records in dispute were a complete list of the school's students, with their addresses and telephone numbers. In St. Louis v. Bridgeton, 806 S.W.2d 717 (Mo.App.1991) (declaratory judgment), the documents sought were records of prices paid by St. Louis for parcels of real estate acquired for airport noise reduction purposes. In Librach v. Cooper, 778 S.W.2d 351 (Mo.App.1989) (injunction), the plaintiff sought records pertaining to severance pay of former superintendent of school...