Laut v. City of Arnold

• Decision Date: 28 June 2016
• Docket Number: No. SC 95307,SC 95307
• Citation: 491 S.W.3d 191
• Parties: Rachal Laut, f/k/a/ Rachal Govro, and John M. Soellner, Appellants, v. City of Arnold, Respondent.
• Court: Missouri Supreme Court

491 S.W.3d 191

Rachal Laut, f/k/a/ Rachal Govro, and John M. Soellner, Appellants,

v.City of Arnold, Respondent.

No. SC 95307

Supreme Court of Missouri, en banc .

Opinion issued June 28, 2016

Laut and Soellner were represented by W. Bevis Schock, an attorney in St. Louis, (314) 721–1698, and Hardy C. Menees of Menees, Whitney, Burnet & Trog in Kirkwood, (314) 821–9798.

The city was represented by Robert K. Sweeney and Allison M. Sweeney of Robert K. Sweeney LLC in Hillsboro, (636) 797–5600.

Laura Denvir Stith

, Judge

Plaintiffs Rachal Laut and John Soellner appeal the trial court's judgment that Plaintiffs are not entitled to a civil penalty or attorney's fees under section 610.027¹ for Defendant City of Arnold's (the city) failure to provide an internal affairs report in response to Plaintiffs' Sunshine Law request because the failure to disclose the report did not result from a knowing or purposeful violation of the Sunshine Law. This Court affirms.

What constitutes a knowing or purposeful violation of the Sunshine Law is a question of law. Section 610.027 expressly states that a knowing violation occurs when the public entity “has knowingly violated sections 610.010 to 610.026.” § 610.027.3. To prove a “knowing” violation, a party, therefore, must do more than show that the city knew that it was not producing the report; as this Court noted in Strake v. Robinwood West Cmty. Improvement Dist., 473 S.W.3d 642, 645 (Mo. banc 2015)

, section 610.027.2 requires proof that the public entity knew that its failure to produce the report violated the Sunshine Law. § 610.027.3. The standard required to prove a “purposeful” violation under section 610.027 is greater—the party must show that the defendant “purposefully violated section 610.010 to 610.026”, which this Court has defined as acting with “a ‘conscious design, intent, or plan’ to violate the law and d[id] so ‘with awareness of the probable consequences.’ ” Spradlin v. City of Fulton, 982 S.W.2d 255, 262 (Mo. banc 1998).

Applying these standards, the trial court found, after an evidentiary hearing, that the city's failure to disclose a particular investigative internal affairs report was neither knowing nor purposeful. In so doing, it rejected Plaintiffs' contention that the city purposefully or knowingly stonewalled the Sunshine Law request and intentionally violated the law. It was up to the trial court to weigh the evidence and resolve the factual question whether the city's conduct fell within the definitions of knowing or purposeful violations under section 610.027. The judgment is affirmed.

I. FACTUAL AND PROCEDURAL HISTORY

In 2010, Plaintiffs believed that one or more Arnold police department employees had accessed Plaintiffs' confidential records in the “Regional Justice Information System” (REJIS) database. In September 2010, Ms. Laut filed a complaint with the Arnold police department, and the department completed an internal affairs investigation. Plaintiffs hired counsel, and on October 11, pursuant to Missouri's Sunshine Law, section 610.010, et seq., counsel sent the city a letter requesting “any and all incident reports, Internal Affairs investigative reports and records of any type (including e-mail and text messages)” regarding:

1. the use of the REJIS computer network by any department employee, including two specifically named employees, to access information about Plaintiffs,

2. any communications by the two named employees or others with law enforcement regarding a criminal background check of Plaintiffs,

3. the reasons for termination of one of the two employees, and

4. the reasons for disciplinary actions taken against the other employee.

The letter stated the attorneys were seeking the documents for the purpose of investigating civil claims.

Section 610.100.2 provides that

All incident reports and arrest reports shall be open records. Notwithstanding any other provision of law other than the provisions of subsections 4, 5 and 6 of this section or section 320.083, investigative reports of all law enforcement agencies are closed records until the investigation becomes inactive. If any person is arrested and not charged with an offense against the law within thirty days of the person's arrest, the arrest report shall thereafter be a closed record except that the disposition portion of the record may be accessed and except as provided in section 610.120.

The city's attorney replied by letter that there had been no criminal investigation and, therefore, no incident report or arrest record. The city stated there had been an internal affairs investigation but the resulting report and all other documents requested by Plaintiffs were closed under section 610.021 because they contain personnel information about specific employees.

Plaintiffs' counsel again demanded the records on October 22 and claimed Plaintiffs were entitled to them under section 610.100.4, which provides that “any person ... may obtain any records closed pursuant to this section or section 610.150 for purposes of investigating a civil claim.”²

On December 2, 2010, Plaintiffs filed their petition for preliminary relief, disclosure of records, statutory damages and attorney's fees. Plaintiffs claimed that the records were part of a criminal investigation and were open records because, whatever the original motivation for the investigation, under federal law someone who “intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains ... information from any protected computer” commits a federal crime that is punishable by fines or imprisonment. 18 U.S.C. § 1030(a)(2)

. Plaintiffs alleged that the city knowingly or purposely violated the Sunshine Law and, therefore, was subject to the statutory remedies of civil penalties, costs, and attorney's fees.

Once it is determined that a governmental body is subject to the Sunshine Law and that it has claimed that a record is closed, the burden is on the governmental body to demonstrate that the Sunshine Law does not require disclosure. See section 610.027.2. Plaintiffs filed a motion for summary judgment, claiming that the internal affairs investigation was conducted in response to complaints of improper or criminal activity, and once the investigation was complete all records relating to the investigation were public under section 610.100.2, and that the city had failed to show an exemption applied. The trial court overruled the motion. The city then moved for summary judgment, claiming the investigation was not a criminal investigation but was limited to determining the employees' fitness to perform their jobs and the resulting report related to disciplinary matters that are exempt from disclosure. In support of its motion, the city submitted the police chief's affidavit stating that, after receiving a complaint from Plaintiffs that two employees had “abused their access to REJIS for personal reasons,” he “ordered that an Internal Affairs investigation be commenced for the limited purpose to determine the fitness of the employees to perform their respective duties.... I have not and will not produce the personnel records or closed Internal Affairs report of my employees pursuant to City Ordinance.”

The trial court granted the city's motion. Plaintiffs appealed, and the court of appeals held there was a dispute whether the internal affairs investigation was a criminal investigation and remanded the case for the trial court to conduct an en camera review of the internal affairs report and of other documents responsive to the two requests relating to employees improperly accessing REJIS and communicating about background checks. Laut v. City of Arnold, 417 S.W.3d 315, 320–21 (Mo.App.2013)

. The court of appeals, however, affirmed the trial court grant of summary judgment “as it relates to any public records other than investigative reports, containing only information responsive to Appellants' requests for the reasons for discipline of [the two named employees].” Id.

On May 7, 2014, the trial court held a hearing at which the city's counsel attested that the records were “a full and accurate representation of all of the documents that are contained within Ms. Laut's personnel records and all records that are pertaining to the case.” After reviewing the records en camera, the trial court found that, “with the exception of the Internal Affairs report,” all the other records were personnel records clearly exempt from disclosure under sections 610.021(3) relating to disciplinary actions and 610.021(13) relating to personnel records.

With regard to the internal affairs report, the trial court found that the city's “contention that the Internal Affairs report is in whole, or in part, a personnel record is wholly inaccurate.” The trial court stated that the internal affairs investigation was initiated after a complaint of alleged criminal activity and the investigation became inactive when the subject of the investigation resigned, making the internal affairs report a record of a closed investigation that must be disclosed under section 610.100.2. See also § 610.011 (“Except as otherwise provided by law, ... all public records of public governmental bodies shall be open to the public for inspection and copying as set forth in sections 610.023 to 610.026[.]”). Accordingly, the trial court ordered the disclosure of the report with a portion related to employees' timesheets redacted.

Apparently presuming that Plaintiffs would seek fees under section 610.100.5, the trial court set a hearing “to determine whether, pursuant to § 610.100.5, Defendant City of Arnold's failure to disclose the Internal Affairs report was ‘substantially unjustified under all relevant circumstances' such that Defendant should be required to pay the reasonable costs and attorney's fees of Plaintiff.” Instead, Plaintiffs filed an application for attorney's fees and a civil penalty under section 610.027, which provides for attorney's fees as well as for...