Sunshine Law – Knowing or Purposeful Violation

Local government officials, routinely process thousands of Sunshine Law requests without a hint of a problem. Occasionally, a request may lead to a dispute over whether or not the record is open or closed, which, for the most part, can routinely be resolved; however, on rare occasions these disputes literally escalate into high stakes, life and death, political warfare.

This was the year when we saw a lot of these life and death struggles play out,  with most of the activity focused on what constitutes a “knowing or purposeful” violation of the law. The news was good for local government. Fortunately, the courts provided some pretty bright lines to assist local government officials in avoiding civil penalties and attorney fees, as well as the embarrassment of being tagged as a  public official who knowingly and purposefully violated the Sunshine Law.

Abject Failure Of The Cole County Prosecutor,  To Comply With Sunshine Law Results In Penalties Of $12,100 To Prosecutor

  • Malin v. Cole County Prosecuting Attorney, is about the abject failure of the Cole County Prosecutor, to comply with even the basic fundamentals of a request for records under the Sunshine Law. In this case, the Prosecutor committed multiple, distinct violations of the Sunshine Law by outright refusing to search, adequately respond to, or fulfill in any manner of at least three separate Sunshine Law requests. The Prosecutor was fined $12,100 in civil penalties for knowingly and purposefully violating the Sunshine Law and lost his reelection bid. This case is important because the Court provided an insightful analysis of how to answer Sunshine Law requests, when there is a dispute.
  • How to properly respond
  • Within three days from the request for the records, let them know 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.
  • Provide a written statement of the grounds for closing the record or a portion thereof by detailing an  objection log for each record or portion thereof for which a claim is made that the record is not open, citing the specific provision of the Sunshine  Law under which the record  is exempt.
  • The person requesting the record would then have an opportunity to obtain a ruling from a trial court compelling production of the record after an in-camera inspection by the court.
  • Court holds that the penalty is up to $5,000 per violation

For a comprehensive analysis of this case click here.

 

 State Auditor Did Not Knowingly And Purposefully Violate  Sunshine Law

  • Missouri Alliance for Freedom v. State Auditor, Nicole Galloway,  involved Nicole Galloway, the State Auditor,  the only Democrat holding a statewide office. A bad outcome in  this case could have consequences for her future electability or something even worse, if a court held that there was a knowing and purposeful violation of the Sunshine Law.  She wins in circuit court.  Key takeaways were:
  • No requirement in the Sunshine Law to create new record from a “native file” (complete metadata), which did not exist.
  • No violation because of lack of specificity in the request.
  • No damages, hence no remedy for lost records.
  • Technology to the forefront 

For a more extensive review of this case click here.

No Summary Judgment For “Knowing Or Purposeful” Violation Of Sunshine Law Because It Involves State Of Mind – A Question Of Fact

  • In Petruska vs. City of Kinloch, a request was made to provide individual salaries of employees and the salary range for that employee.Plaintiff filed a motion for summary judgment, which was granted in part by the trial court holding that the City violated the Sunshine Law by not providing the records but that the violation was not “knowing or purposeful.”
  • The question of whether or not there was a knowing or purposeful violation of the law is a question of fact that involves a party’s state of mind, which cannot generally be determined on a motion for summary judgment.
  • A knowing violationrequires proof that the public governmental body had “actual knowledge that [its] conduct violated a statutory provision.”
  • A purposeful violationis a conscious design, intent, or plan to violate the law and do so with awareness of the probable consequences.
  • Remedies – State law provides a public governmental body, when in doubt about the legality of closing a particular meeting, record or vote may bring suit at the expense of that public governmental body in the circuit court to ascertain the propriety of any such action, or seek a formal opinion of the attorney general or an attorney for the governmental body. Seems like these actions  should be in  good faith.

For a more extensive review of this case click here.

Negligence Is Not Sufficient to Prove a “Knowing or Purposeful” Violation of the Sunshine Law.

  • In Malin vs. Metro Multi-Jurisdictional Undercover Drug Program, a request was made to obtain records from the Louis Metro Drug Task Force budgetary documents, documents showing the quantity of weapons and narcotics found by the Drug Test Force, and documents reflecting assets the Drug Task Force seized via civil and criminal asset forfeiture.  The   attorney for the Board, directly responded to Plaintiff’s records, stating that the City did not have a “St. Louis Drug Task Force.  After several other requests, Malin, finally got the records that he was seeking, some four months after the initial request. Malin filed a lawsuit alleging that the attorney for the Board “knowingly or purposefully” withheld documents for the task force that he knew existed, no matter what it was called, requesting a $5,000 penalty against the Board’s attorney and payment of attorney’s fees for three years of litigation. Ouch! The trial court found that there was not a purposeful violation, therefore there no civil penalties were assessed and no attorney fees were awarded. Case was appealed, which upheld the trial court. Lessons learned:
  • Custodian of records should respond, not attorney.
  • Custodian of records should be designated in your Sunshine Law policy.
  • The handling of the request was negligent, but not purposeful.

For a more extensive review of this case click here.

No Violation of the Sunshine Law For Making A Record Open That Can Otherwise Be Closed

  • A 911 recording of a complaint about the Livingston County Sheriff, was played for the Livingston County prosecutor and two county commissioners. The Sheriff filed a lawsuit contending that the disclosure of the 911 recording violated the Sunshine Law because it was part of an investigative report and that under the state law it was not accessible to the general public.
  • Cox  v.  City of Chillicothe, (WD81748, 02/13/19), held that the Sunshine law was a permissive statute allowing disclosure of records but not necessarily requiring that they be kept confidential. Furthermore, the Sunshine Law does not permit civil damages for the improper disclosure of a closed record, except for purposeful and willful violations, for which there is a specific remedy.

Howard Wright© 2019

 

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