Harper v. Mo. State Highway Patrol
| Decision Date | 05 November 2019 |
| Docket Number | WD 82465 |
| Citation | 592 S.W.3d 32 |
| Parties | Kimberly HARPER and Sharon Kay Harper, Appellants, v. MISSOURI STATE HIGHWAY PATROL, et al., Respondents. |
| Court | Missouri Court of Appeals |
Anthony Rothert, St. Louis, MO, Counsel for Appellants.
Jessica Steffan, St. Louis, MO, Co-Counsel for Appellants.
Gillian Wilcox, Kansas City, MO, Co-Counsel for Appellants.
Shannon Gamble, Jefferson City, MO, Counsel for Respondents.
Before Special Division: Thomas H. Newton, Presiding Judge, Alok Ahuja and Thomas N. Chapman, Judges
Ms. Kimberly Harper and Ms. Sharon Kay Harper (Harpers), Appellants, seek an injunction under the Missouri Sunshine Law (Sunshine Law) section 610.0101 against the Missouri State Highway Patrol (MSHP), after it refused to disclose information relating to the shooting of now deceased Cpl. Bob Harper. The circuit court determined that the records are protected from disclosure under the Freedom of Information Act (FOIA), by way of 5 U.S.C. §§ 552(b)(7)(A) and 552(c)(1). Appellants challenge as error the circuit court’s declaration and application of the federal law and not state law. We reverse.
Kimberly and Sharon Kay Harper are the daughter and widow, respectively, of a former MSHP Patrolman, Cpl. Harper. MSHP is a public governmental body subject to the requirements of the Sunshine Law. Corporal Harper was shot at his home in 1994, and, both the MSHP and the Federal Bureau of Investigation (FBI) opened separate investigations into the shooting. The FBI policy in 1994 permitted attaching a copy of the FBI report to the narratives of state agencies; in 2001, however, a policy change limited the state agency to only reference the FBI report number in its own narrative. The MSHP investigators with FBI clearance to review FBI reports would write a narrative report referring to the FBI report information. In 1996, the MSHP created lead report #151, a narrative of an FBI interview, with the attached FBI report.
In 2016, the MSHP created lead report #305, a narrative referencing information from a different FBI report, without the FBI report attached.
Ms. Kimberly Harper submitted an online Sunshine Law request in July 2015 to MSHP’s Custodian of Records, requesting the disclosure of all records pertaining to Cpl. Harper’s June 1994 arrest of Mr. Robert Joos ("Joos request").2 In the Joos request, Ms. Kimberly Harper stated:
I would like all reports (arrest, incident, etc.) written by my father MSHP Cpl. Bob Harper, MSHP Sgt. Steve Dorsey, MSHP Sgt. Miles Parks, and MSHP Sgt. Michael Rogers related to the arrest of Robert Joos on June 29, 1994, in McDonald County, Missouri. My father and Steve Dorsey were the arresting officers, but Parks and Rogers were there. During the arrest my father was injured and former MSHP Superintendent Ron Replogle told me that my father should have written and filed a report for his injuries. If there is such an injury report, I would like that as well, in addition to any reports and paperwork related to the arrest.
On September 14 and 28, 2015, Ms. Kimberly Harper emailed Lt. McCollum to follow up the Joos request as she had not yet received the records. On September 29, 2015, Ms. Sharon Kay Harper submitted an online Sunshine Law request to MSHP’s Custodian of Records, in which she stated:
( ).
MSHP disclosed records related to the Joos request in October 2015 and informed Ms. Sharon Kay Harper that the records responsive to the Cpl. Harper request were closed and would not be disclosed. On October 28, 2015, MSHP’s general counsel emailed appellants and stated, "Pursuant to Missouri Revised Statutes section 610.100, the records you requested are closed records since the investigation into this matter remains an active investigation." In response to this email, the Harpers emailed general counsel and requested that the records be produced with redactions. The MSHP did not disclose the records.
In April 2016, the Harpers filed a petition naming the MSHP and the McDonald County prosecuting attorney as defendants. The circuit court denied the MSHP’s motion to dismiss the action finding that, by operation of section 610.100.1(3)(b), the passage of ten years after Cpl. Harper’s shooting rendered inactive the ongoing criminal investigation and made the file a public record. In May 2016, the MSHP gave the Harpers most of the 2200 documents pursuant to the Cpl. Harper request and provided a log of records that it claims to be exempt from disclosure under section 610.100.3, and for lack of jurisdiction. Among documents logged for redaction, the MSHP redacted lead report #151 and lead report #305 ("records at issue").3 The reason stated in the privilege description for lead report #151 is as follows:
This report was prepared by the FBI as is not within the State’s jurisdiction to release. Additionally, this report was prepared by an undercover officer. Revealing the officer’s name would jeopardize the safety of that officer and his or her family.
The reason stated in the privilege description for lead report #305 is as follows:
This report was prepared by the FBI as is not within the State’s jurisdiction to release.4
The circuit court held a bench trial and conducted an in camera review of the records at issue; the Harpers were given an opportunity to cross examine the MSHP witness regarding the basis for those redactions.5 The circuit court dismissed the McDonald County prosecuting attorney for lack of prosecution and found in favor of the MHSP, concluding that the records at issue retained or referenced in the MSHP investigative file are closed records under section 610.021(14) and the Freedom of Information Act (FOIA), 5 U.S.C. §§ 552(b)(7)(A) and 552(c)(1). (L.F. Doc. 20). The Harpers timely appeal the circuit court’s order.
As this is a court-tried case, our review is governed by Murphy v. Carron , 536 S.W.2d 30, 32 (Mo. banc 1976). "Accordingly, we will affirm the trial court's judgment unless there is no substantial evidence to support it, it is against the weight of the evidence, it erroneously declares the law, or it erroneously applies the law." W.C.H. v. State , 546 S.W.3d 612, 614 (Mo. App. E.D. 2018). "The trial court's application of statutory requirements is a question of law rather than fact; therefore, we review the trial court's application of statutory requirements de novo. " Doe v. St. Louis Cty. Police Dep't , 505 S.W.3d 450, 453 (Mo. App. E.D. 2016) (citation omitted).
In the sole point relied on, the Harpers claim that the circuit court erred by applying FOIA to close records retained by the MSHP because the Sunshine Law governs the status of the records at issue. According to the Harpers, "FOIA neither preempts nor is incorporated into the Sunshine Law," and the circuit court’s decision to close the records at issue was erroneous and should be reversed. Id.
The circuit court found that the records at issue are subject to FOIA and that FOIA preempts the Sunshine Law because, "Under the Supremacy Clause, state laws and constitutional provisions are ‘preempted and have no effect’ to the extent they conflict with federal laws." Johnson v. State , 366 S.W.3d 11, 26-27 (Mo. banc 2012). Federal law can preempt state law expressly, by implication through "field preemption," or when a state law conflicts with federal law. Arizona v. United States , 567 U.S. 387, 132 S. Ct 2492, 2500-01, 183 L.Ed.2d 351 (2012).
A state law is expressly preempted by federal law when Congress enacts a statute containing an express preemption provision. Id. at 2500–01. Field preemption occurs when a state regulates conduct "in a field that Congress, acting within its proper authority, has determined must be regulated by its exclusive governance." Id.
"The intent to displace state law altogether can be inferred from a framework of regulation ‘so pervasive ... that Congress left no room for the States to supplement it’ or where there is a ‘federal interest ... so dominant that the federal system will be assumed...
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