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"Hey, whose record is this?" Federal agency records, FOIA, and the Sunshine Law

Updated: Jun 29, 2022

The Missouri Court of Appeals, in Harper et al. v. Missouri State Highway Patrol, et al. (Mo. App. Nov. 5, 2019), held that the United States Freedom of Information Act (“FOIA”) applies only to federal agency records that are in the sole custody of that federal agency, and where federal agency records are retained by and attached to records of a Missouri political governmental body, Missouri Sunshine Law (RSMo. § 610 et. seq.) is not preempted by FOIA.

Plaintiffs sought various investigative records from the Missouri State Highway Patrol (“MSHP”) relating to the shooting of an officer through an open records request under Missouri’s Sunshine Law. MSHP and the FBI were simultaneously investigating the shooting, and MSHP obtained certain documents from the FBI during its investigation. In its own reports, MSHP, at times, summarized the contents of the FBI documents and, occasionally, would attach the FBI documents to the MSHP reports. After months of contention concerning the status of records, MSHP released some records to Plaintiffs but withheld the various documents relating to information obtained from the FBI. MSHP claimed those documents were closed records because they were FBI documents, not within the State’s jurisdiction to disclose, and they contained information regarding undercover officers. Plaintiffs filed suit against MSHP to obtain the FBI records and MSHP records containing FBI information. The trial court ruled that FOIA preempted the Sunshine Law, and since the FBI documents were considered closed under FOIA, any information gathered from those FBI documents (and any attached documents) are therefore closed records under the Sunshine Law pursuant to § 610.021(14) (“[r]ecords which are protected from disclosure by law”).

On appeal, the Missouri Court of Appeals disagreed. Although it did not acknowledge the undercover officer issue, the Court did acknowledge that the Supremacy Clause of the U.S. Constitution allows federal laws to preempt state laws. However, FOIA preemption of the Missouri Sunshine Law applies only to federal agency records. While the FBI documents were such agency records, they were possessed and retained by MSHP. Accordingly, when MSHP attached such records to their own reports, they became records of MSHP. The court noted that governmental agencies may, and often do, share records. However, such sharing surrenders sole custody of the record and may, therefore, subject the information to state open-records laws. Given that cities may have old FBI reports within their files, cities should be aware of this case in the event they receive a relevant Sunshine request.

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