Missouri has the Missouri Sunshine Law which is Missouri’s version of the Freedom of Information Act. Chapter 610 R.S.Mo. The Sunshine Law applies to both meetings and documents. Documents will be the subject of this short memo.
There are two ways to violate the Sunshine Law.
The first way to violate the Sunshine Law is to fail to respond to Sunshine Law requests within 3 business days. Section 610.023(3) R.S.Mo. The City does not have to produce the requested documents within 3 business days but if the City does not produce the documents within 3 business days the City has to explain why and how long it will take the City to produce the requested documents. Section 610.023(3) R. S. Mo. In the City’s response to the Sunshine Request the City also needs to list the documents requested which it is not going to produce and any charge for locating and producing the documents .
The second way to violate the Sunshine Law is to fail to produce requested documents which are to be produced under the Sunshine Law. The Sunshine Law requires public documents requested to be produced but the Sunshine Law allows certain categories of documents to be withheld. Section 610.021 R.S.Mo. For instance, cities may withhold communications with their attorney, records for the firing, disciplining, or promoting of employees, personnel records, and other categories of documents listed in §610.021 R.S.Mo.
If a City does violate the Sunshine Law by not responding timely or completely, or by not producing documents requested, the question is what is the remedy for the City’s violation?
Normally, the remedy for a Sunshine Law violation is a court order that the requested documents be produced.
Money damages are only available for a Sunshine Law violation under somewhat narrow circumstances. If a City “knowingly” violates the Sunshine Law then the Court may award the claimant statutory damages up to $1000.00 per violation plus reasonable attorney fees incurred in proving the violation. Section 610.027.3 R.S.Mo. If a City “purposely” violated the Sunshine Law, then the Court may award the claimant statutory damages up to $5000.00 per violation plus reasonable attorney fees incurred in proving the violation. Section 610.027.4 R.S.Mo.
A “knowing” violation means the City “had actual knowledge that the conduct violated a statutory provision.” Laut v. City of Arnold, 491 S.W.3d 191 (Mo. banc 2016).
A “purposely” violation means that the City had a conscious design and intent to violate the law and knew it was doing so. Laut v. City of Arnold, 491 S.W.3d 191 (Mo. band 2016).
There does not appear to be much if any difference between “knowing” and “purposely”.
Sunshine Law cases are tried by the court without a jury.
The City has the burden of justifying not producing requested documents and the Sunshine Law is interpreted in favor of production. In uncertain cases, the Court is to rule in favor of production or disclosure. Section 610.027.2 R.S.Mo.
In the recent case of Garner v. City of Wellston, Judge Burton of the St. Louis County Circuit Court found the City of Wellston knowingly and purposely violated the Sunshine Law. Garner v. City of Wellston, St. Louis County Circuit Court Case No. 15SL-CC03400 (April 12, 2017). Judge Burton imposed the maximum statutory penalty of $20,000.00 in statutory damages ($5000 for each of 4 violations) and awarded over $12,000.00 in attorney fees.
Basically, the way to handle Sunshine Law requests is to respond quickly and timely, and produce everything requested except those document clearly exempt from production. In uncertain cases, the Court is to rule in favor of production or disclosure Otherwise a City could spend thousands on lawyers and possible statutory damages and attorney fees. Rarely is a municipal document worth the time and effort of defending a lawsuit.
The author has successfully represented cities and claimants in Sunshine Law disputes.