Malin v. Cole Cnty. Prosecuting Attorney

• Decision Date: 15 January 2019
• Docket Number: WD 81583
• Citation: 565 S.W.3d 748
• Parties: Aaron M. MALIN, Respondent, v. COLE COUNTY PROSECUTING ATTORNEY, Appellant.
• Court: Missouri Court of Appeals

565 S.W.3d 748

Aaron M. MALIN, Respondent,

v.COLE COUNTY PROSECUTING ATTORNEY, Appellant.

WD 81583

Missouri Court of Appeals, Western District.

OPINION FILED: January 15, 2019

David E. Roland, Freedom Center of Missouri, Mexico, MO; Gillian R. Wilcox, ACLU of Missouri Foundation, Kansas City, MO; and Anthony E. Rothert and Jessie Steffan, ACLU of Missouri Foundation, St. Louis, MO, Attorneys for Respondent.

Todd T. Smith, Assistant Prosecuting Attorney, Cole County Prosecuting Attorney’s Office, Jefferson City, MO, Attorney for Appellant.

Before Division Two: Alok Ahuja, Presiding Judge, and Thomas H. Newton and Mark D. Pfeiffer, Judges

Mark D. Pfeiffer, Judge

In this Sunshine Law request case, the Cole County Prosecuting Attorney’s Office ("Prosecutor") appeals the judgment of the Circuit Court of Cole County, Missouri ("circuit court"), in favor of Mr. Aaron Malin ("Malin"), ordering the production of certain records the Prosecutor argues are not open to the public and imposing a $12,100 civil penalty against the Prosecutor that the Prosecutor argues is excessive. We affirm.

Sunshine Law

Missouri’s Sunshine Law is contained in chapter 610 of the Missouri Revised Statutes and dictates that state public policy is "that meetings, records, votes, actions, and deliberations of public governmental bodies be open to the public unless otherwise provided by law." § 610.011.1.¹ The legislature has clearly expressed its intent that the Sunshine Law "shall be liberally construed and [its] exceptions strictly construed to promote this public policy." Id. "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...." § 610.011.2.

Here, there is no dispute that the Prosecutor is a "public governmental body" as defined in section 610.010(4): "any legislative, administrative or governmental entity created by the Constitution or statutes of this state, by order or ordinance of any political subdivision or district, judicial entities when operating in an administrative capacity, or by executive order[.]" There is also no question that records retained by the Prosecutor constitute "public records" as defined in section 610.010(6): "any record, whether written or electronically stored, retained by or of any public governmental body[.]" Section 610.022.5 provides that "[p]ublic records shall be presumed to be open unless otherwise exempt pursuant to the provisions of this chapter."

Section 610.023.3 requires:

Each request for access to a public record shall be acted upon as soon as possible, but in no event later than the end of the third business day following the date the request is received by the custodian of records of a public governmental body. If records are requested in a certain format, the public body shall provide the records in the requested format, if such format is available. If access to the public record is not granted immediately, the custodian shall give a detailed explanation of the cause for further delay and the place and earliest time and date that the record will be available for inspection. This period for document production may exceed three days for reasonable cause.

In the event a public governmental body denies a request, a written statement of the grounds for such denial must be provided, which "shall cite the specific provision of law under which access is denied and shall be furnished to the requester no later than the end of the third business day following the date that the request for the statement is received." § 610.023.4. In the case of a public record containing both "material which is not exempt from disclosure as well as material which is exempt from disclosure, the public governmental body shall separate the exempt and nonexempt material and make the nonexempt material available for examination and copying." § 610.024.1.

Where a public governmental body "knowingly" fails to comply with these mandatory steps, section 610.027.3 provides the possible consequences, stating:

Upon a finding by a preponderance of the evidence that a public governmental body or a member of a public governmental body has knowingly violated sections 610.010 to 610.026, the public governmental body or the member shall be subject to a civil penalty in an amount up to one thousand dollars. If the court finds that there is a knowing violation of sections 610.010 to 610.026, the court may order the payment by such body or member of all costs and reasonable attorney fees to any party successfully establishing a violation. The court shall determine the amount of the penalty by taking into account the size of the jurisdiction, the seriousness of the offense, and whether the public governmental body or member of a public governmental body has violated sections 610.010 to 610.026 previously.

Where a public governmental body "purposely" refuses to comport with the requirements of the Sunshine Law, section 610.027.4 provides the consequences, stating:

Upon a finding by a preponderance of the evidence that a public governmental body or a member of a public governmental body has purposely violated sections 610.010 to 610.026, the public governmental body or the member shall be subject to a civil penalty in an amount up to five thousand dollars. If the court finds that there was a purposeful violation of sections 610.010 to 610.026, then the court shall order the payment by such body or member of all costs and reasonable attorney fees to any party successfully establishing such a violation. The court shall determine the amount of the penalty by taking into account the size of the jurisdiction, the seriousness of the offense, and whether the public governmental body or member of a public governmental body has violated sections 610.010 to 610.026 previously.

Factual and Procedural Background

On three separate occasions from April 2015 through October 2015, Malin requested from the Prosecutor: (1) correspondence between the Prosecutor and a drug task force; (2) indictments by the Prosecutor relating to narcotic sales in public housing from July 2014 to the present; and, (3) Sunshine Law requests to the Prosecutor and any responses thereto from January 2015 to the present. Each Sunshine Law request mirrored the Sunshine Law and stated that the records were to be provided without redactions or with only redactions permitted by law, and that if any part of the request was denied, that the specific exceptions relied upon for each denial be listed. On each occasion, the Prosecutor responded with general objections to the records requests, sometimes untimely, and indicated that the request was too burdensome and the task of searching for any responsive documents simply would not be performed; further, the Prosecutor stated his conclusions "without confirming or denying the existence of records you requested."

Subsequently, Malin hired an attorney, and the attorney wrote to the Prosecutor and explained the untimely and statutorily deficient form of the Prosecutor’s Sunshine Law responses; the Prosecutor ignored the letters from Malin’s attorney. Malin’s attorney then filed the instant Sunshine Law suit, and only then, after many months of protracted litigation, did the Prosecutor provide partial responses to some of the requests, again refusing to note the identification of other records responsive to the Sunshine Law requests and failing to provide specific statutory reasons for refusing to search for or disclose such records.

Malin filed a motion for summary judgment seeking production of all records responsive to the Sunshine Law requests and further seeking civil penalties against the Prosecutor for the blatant disregard of the requirements of Missouri’s Sunshine Law. The motion was ruled in favor of Malin. In its judgment, the circuit court noted with disdain that the Prosecutor’s admitted position was that the Prosecutor "would not even conduct a search for responsive documents because, as he asserted, every record retained by his office was exempted from disclosure under the Sunshine Law." The circuit court’s judgment found the Prosecutor’s conduct to be undisputedly purposeful, knowing, dilatory, and non-responsive to the requirements of Missouri’s Sunshine Law. Specifically, the circuit court’s judgment decreed:

1. Defendant knowingly and purposely violated the Sunshine Law.

2. Defendant must search for and produce all open records responsive to Plaintiff’s requests, which includes the following:

a) any correspondence or communication between the Office of the Prosecuting Attorney of Cole County (or its associates/employees) and the MUSTANG drug task force (or its associates/employees);

b) any indictments handed down in Cole County between July 1, 2014 and the present, limited to indictments for selling narcotics in public housing; and

c) any Sunshine Law (or open records) requests received by the Cole County Prosecutor’s Office, as well as any responses provided, between January 1, 2015 and the present.

3. Defendant is ordered to pay a $12,100 civil penalty to Plaintiff.

4. Defendant is further ordered to pay Plaintiff’s costs and reasonable attorneys' fees in the amount of $24,070.00....

On appeal, the Prosecutor does not challenge that he knowingly and purposely violated the Sunshine Law² as to the second and third categories of records ordered to be produced; the Prosecutor does not challenge the award of costs and reasonable attorney’s fees in the amount of $24,070; the Prosecutor does not challenge the award of a section 610.027 civil penalty. Instead, on appeal, the Prosecutor only challenges the judgment’s order of the production of certain records responsive to the first category of records requested (drug task force communications) and only challenges the amount of the civil penalty awarded to Malin.

Standard of Review

"When considering appeals from summary judgments, the Court will review the record in the light...