Harper v. Mo. State Highway Patrol, WD 82465

CourtCourt of Appeal of Missouri (US)
Writing for the CourtThomas H. Newton, Presiding Judge
Citation592 S.W.3d 32
Parties Kimberly HARPER and Sharon Kay Harper, Appellants, v. MISSOURI STATE HIGHWAY PATROL, et al., Respondents.
Decision Date05 November 2019
Docket NumberWD 82465

592 S.W.3d 32

Kimberly HARPER and Sharon Kay Harper, Appellants,
v.
MISSOURI STATE HIGHWAY PATROL, et al., Respondents.

WD 82465

Missouri Court of Appeals, Western District.

OPINION FILED: November 5, 2019
Motion for Rehearing and/or Transfer to Supreme Court Denied December 12, 2019
Application for Transfer Denied February 18, 2020


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

Thomas H. Newton, Presiding Judge

Summary

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.

Q. Okay. The next exhibit I've marked is 16. It's Lead Report 151, plus it looks like some attachments that are all redacted.

A. This is one of the FBI reports I was talking about that we get the report, we refer to the report. This is how we referred to the FBI report and then the FBI report that was in this file was redacted.
592 S.W.3d 36
Q. Okay. And I'm sorry if I'm asking questions you feel like you've already answered.

A. Yeah.

Q. So these full redacted pages, this is a report -- this is pages that the FBI–

A. This is an FBI report.

Q. Okay.

A. Right.

Q. But is it retained by the Missouri State Highway Patrol if it’s in the FBI report?

A. This FBI report -- a copy of this FBI report was with this narrative.

Q. Okay. And it was used by your investigative team during this investigation?

A. They may have used it, correct.

Q. But it was in their possession?

A. It was in their -- the copy was in their possession.

In 2016, the MSHP created lead report #305, a narrative referencing information from a different FBI report, without the FBI report attached.

Q. Yes. We have a copy of Lead 305.

MR. RESCHLY: But not the attachments.

MS. WILCOX: Right.

BY MS. WILCOX:

Q. But it looks like the attachments that would have been the FBI's report that it references –

A. Right. This -- this -- this report refers to a lead that we received reference the Harper investigation. That lead was forwarded to the FBI office in Raleigh, North Carolina, and they followed up on it. Then they wrote a report. It is the – but it's not included in the Harper case file, no.

Q. Okay. Did Missouri State Highway Patrol ever see or have possession of the FBI report?

A. I have never seen or had possession of that FBI report.

Q. Okay. Unlike in the other exhibit we have where it was actually attached?

A. Correct.

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:

"I would like all records, as defined by Section 610.010(6) pertaining to the shooting of husband MSHP Cpl. Bobbie J. Harper on September 16, 1994, and
592 S.W.3d 37
the subsequent investigation" ("Cpl. Harper request").

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.

Legal Analysis

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

592 S.W.3d 38

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.

I.

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...

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