The Missouri Court of Appeals recently clarified the “litigation” exception to Missouri’s Sunshine Law (RSMo. § 610 et. seq.) after an individual who threatened litigation against a City was denied access to records on that basis. Wyrick v. Henry, (Mo. App. Nov. 12, 2019).
The Plaintiff’s mother was involved in a serious motor vehicle accident at an intersection in the City. As required by state statute, Plaintiff’s counsel sent notice to the City that a claim for damages may be filed in regard to the accident. Approximately six months later, still with no lawsuit pending against the City, Plaintiff submitted a Sunshine request for various records relating to the intersection, including any complaints about safety, accident information, design records, and traffic and diagnostic studies. The City denied the request, citing § 610.021.1, (legal actions, causes of action or litigation) without conducting a search for the records. After submitting a second Sunshine request and receiving a second denial by the City, Plaintiff sued. There was testimony in the trial court record that Sunshine requests were, at least sometimes, denied by the City where they were made by an individual who had filed notice of claim against the City. The trial court held that the City knowingly and purposefully violated the Sunshine Law, awarding a civil penalty and attorneys’ fees to Plaintiff. The City appealed.
The Court of Appeals affirmed the ruling and held that the exception contained in § 610.021.1 applies (or does not) based on the nature of the record, and not the identity of the person making the request. Furthermore, public records are not closed, and do not have sufficient nexus to fit the litigation exception in § 610.021.1 merely where they may be relevant to or discoverable in litigation, nor if the requestor has simply threatened litigation. Instead, the focus is on the nature of the document itself, and only when the document itself is related to litigation or pending litigation is it captured by the exception. Such a determination is not informed by the identity of the person making the request or whether a City has received notice of threatened litigation (for example, if a record would be open for one requestor, it should be open for all).
The Court also upheld the knowing and purposeful nature of the Sunshine Law violations and implied that a policy or practice violative of the Sunshine Law can strongly influence such a finding and the award of attorneys' fees. The Court placed importance on the clerk’s stated knowledge of the provisions of the Sunshine Law and the fact that no searches were conducted for responsive records. The Court also did not affirmatively disagree with the trial court’s ruling, which found multiple violations and imposed (or stacked) four $1,000 penalties, totaling $4,000. Cities are encouraged to review their Sunshine Law policies and practices and discuss with their city attorneys in light of this opinion.