Pulitzer Pub. Co. v. Missouri State Employees' Retirement System

• Court: Missouri Court of Appeals
• Writing for the Court: ELLIS
• Citation: Pulitzer Pub. Co. v. Missouri State Employees' Retirement System, 927 S.W.2d 477 (Mo. App. 1996)
• Decision Date: 25 June 1996
• Docket Number: No. WD,WD
• Parties: PULITZER PUBLISHING COMPANY, Appellant, v. MISSOURI STATE EMPLOYEES' RETIREMENT SYSTEM, Respondent. 51578.

Page 477

927 S.W.2d 477

PULITZER PUBLISHING COMPANY, Appellant, v. MISSOURI STATE EMPLOYEES' RETIREMENT SYSTEM, Respondent.

No. WD 51578.

Missouri Court of Appeals Western District.

June 25, 1996.

Motion for Rehearing and/or Transfer to

Supreme Court Denied July 30, 1996.

Application to Transfer Denied

Sept. 17, 1996.

Robert B. Hoemeke, Eric D. Paulsrud, Lewis, Rice & Fingersh, St. Louis, for appellant.

Allen D. Allred, Lawrence C. Friedman, Patricia L. Cohen, Thompson & Mitchell, St. Lewis, for respondent.

Before HANNA, P.J., and SMART and ELLIS, JJ.

ELLIS, Judge.

Pulitzer Publishing Company, Inc. ("Pulitzer") brought this action against the Missouri State Employees' Retirement System ("MOSERS") in the Circuit Court of Cole County seeking an injunction and a declaratory judgment. Pulitzer prayed for an injunction directing MOSERS to make available for its inspection certain records related to the pensions paid to various former Missouri state officials. It also sought a declaration that a regulation promulgated by MOSERS, 16 CSR 30-2.120, upon which MOSERS relied in denying its request for records, was invalid. MOSERS moved to dismiss the petition. Thereafter, the motion was argued, and on August 24, 1995, the trial court entered an order dismissing the petition for failure to state a claim upon which relief could be granted. From the dismissal, Pulitzer perfected this appeal.

Pulitzer's petition contained the following allegations. Pulitzer is a corporation organized under the laws of the State of Missouri with its principal business office and place of business in the city of St. Louis. It owns and publishes the St. Louis Post-Dispatch, a daily newspaper. MOSERS is a body corporate and an instrumentality of the State, existing pursuant to § 104.320. ¹ It is an administrative governmental, deliberative body under the direction of three or more appointed members having rule-making or quasi-judicial power, and therefore is a public governmental body for purposes of §§ 610.010 through 610.030 ("the Sunshine Law"). MOSERS is required to keep certain records sought by Pulitzer pursuant to § 104.480, and such records must be open to inspection by any Missouri citizen at all reasonable times pursuant to § 109.180 ("the Public Records Law"). There is no provision in either the Sunshine Law or the Public Records Law which authorizes or requires that such records be held confidential. The Sunshine Law requires that the records retained by MOSERS be open to the public for inspection and copying unless an exception applies. Electronic or written records maintained by MOSERS regarding receipts and/or disbursements to individual members are public records for purposes of the Sunshine Law.

The petition further alleged that on June 13, 1994, Virginia Young, a reporter for the St. Louis Post-Dispatch, made a written request of MOSERS to disclose the amount of pension payments, length of service, salary history and dates of pension payments made to former Governors Warren Hearnes and Christopher S. "Kit" Bond, former House Speakers Richard J. Rabbitt and Kenneth J. Rothman, and former Senate Presidents Pro Tem Earl R. Blackwell and William J. Cason. On the same day, MOSERS acknowledged receipt of the request, and thereafter, on June 29, 1994, it refused to produce the requested information stating that "MOSERS would be precluded from providing the records ... requested under Section 610.021(13) and (14) and 16 CSR 30-2.120." On July 1, 1994, Jim Moseley, a reporter for the St. Louis Post-Dispatch, made a written request of MOSERS to provide computerized records pertaining to active and inactive members of MOSERS. On July 12, 1994, MOSERS refused to produce the requested information for the same reasons set out above. The petition further alleged that there was nothing in Chapter 104 ("Retirement of State Officers and Employees") or the Sunshine Law authorizing that such records be held confidential, and that 16 CSR 30-2.120, a regulation promulgated by MOSERS which declares, inter alia, that the records of members of MOSERS are confidential, exceeds the statutory authority conferred on MOSERS and is therefore unlawful. Pulitzer went on to allege that the closure of the records it sought violated both the Sunshine Law and the Public Records Law. Pulitzer prayed in Count I for a judgment declaring 16 CSR 30-2.120 invalid and in Count II for an injunction compelling MOSERS to produce the requested records, as well as for its attorneys' fees and costs.

As noted earlier, MOSERS filed a motion to dismiss which, after argument, the trial court sustained, finding that the petition failed to state a claim upon which relief could be granted. The trial court did not recite any specific grounds for its decision.

In reviewing the dismissal of a petition, we determine if the facts pleaded and the inferences reasonably drawn therefrom state any ground for relief. Martin v. City of Washington, 848 S.W.2d 487, 489 (Mo. banc 1993). A motion to dismiss for failure to state a claim upon which relief can be granted is solely a test of the adequacy of the plaintiff's petition. Nazeri v. Missouri Valley College, 860 S.W.2d 303, 306 (Mo. banc 1993). For purposes of the motion, all averments in the petition are assumed to be true and are construed liberally and favorably to the plaintiff. Id.; Martin, 848 S.W.2d at 489. No effort is made to weigh any of the factual allegations to determine whether they are credible or persuasive. Nazeri, 860 S.W.2d at 306. Rather, "the petition is reviewed in an almost academic manner, to determine if the facts alleged meet the elements of a recognized cause of action, or of a cause that might be adopted in that case." Id.

On appeal, Pulitzer argues one point, claiming the court erred in dismissing the petition because the records sought are public records under the Sunshine Law, not within any exception or exemption, in that (a) the records are public records because they are maintained by a public governmental body, MOSERS; (b) the records do not fall within the "otherwise provided by law" exception because that provision applies only to statutes and not regulations; and (c) the records do not fall within the exemption for "individually identifiable personnel records" because the exemption does not extend to "names, positions, salaries and length of service," and pension benefits fall within the definition of salaries. Amicus Curiae Missouri Press Association echoes this position in its brief.

MOSERS counters by arguing, as it did in the trial court, that it had the statutory authority to adopt its regulation, 16 CSR 30-2.120; that the regulation is valid and as such falls within the accepted definition of a "law" as used in § 610.021(14); and that therefore, under § 610.021(14), the requested records "are protected from disclosure by law." Secondarily, MOSERS asserts the records sought are "individually identifiable personnel records," which it has the right not to disclose pursuant to § 610.021(13).

Section 610.011 provides:

1. It is the public policy of this state that meetings, records, votes, actions, and deliberations of public governmental bodies be open to the public unless otherwise provided by law. Sections 610.010 to 610.028 shall be liberally construed and their exceptions strictly construed to promote this public policy.

2. Except as otherwise provided by law, all public meetings of public governmental bodies shall be open to the public as set forth in section 610.020, 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, and all public votes of public governmental bodies shall be recorded as set forth in section 610.015.

Section 610.021 enumerates exceptions to § 610.011. In pertinent part, § 610.021 provides:

Except to the extent disclosure is otherwise required by law, a public governmental body is authorized to close meetings, records and votes, to the extent they relate to the following:

* * * * * *

(13) Individually identifiable personnel records, performance ratings or records pertaining to employees or applicants for employment, except that this exemption shall not apply to the names, positions, salaries and lengths of service of officers and employees of public agencies once they are employed as such;

(14) Records which are protected from disclosure by law;

The parties concede that MOSERS is a public governmental body and that the information requested is a public record for purposes of § 610.011. ² As stated earlier, MOSERS' denial of Pulitzer's request for information was premised on two theories, the first being that 16 CSR 30-2.120, a regulation adopted by MOSERS pursuant to its rule-making authority, ³ prohibited disclosure of the requested information, ⁴ and therefore, the records were "protected from disclosure by law" under § 610.021(14).

While MOSERS' contention is imaginative, it must fail as a basis for denying Pulitzer's requests. "It is well settled that a regulation may not conflict with a statute and if it does the regulation must fail." Johnson v. Labor & Indus. Relations Comm'n, 591 S.W.2d 241, 244(Mo.App. W.D.1979). MOSERS, like an administrative agency, is a creature of statute and, as such, has only such authority as is delegated to it by the legislature. Missouri Hosp. Ass'n v. Air Conservation Comm'n, 874 S.W.2d 380, 397 (Mo.App. W.D.1994). Rules and regulations may be promulgated only to the extent of and within the authority delegated by the legislature. Id. "Rules are void if they are beyond the scope of the legislative authority conferred upon the state agency or if they attempt to extend or modify statutes." Missouri Hosp. Ass'n v. Missouri Dep't of Consumer Affairs, Regulation & Licensing, 731 S.W.2d 262, 264(Mo.App. W.D.1987).

A review of §§ 104.312-104.552, the statutory provisions creating and providing for operation of MOSERS, reveals...