The Sunshine Law requires public governmental bodies to appoint a custodian of records, who is responsible for maintaining the body’s records and responding to Sunshine Requests. § 610.023 RSMo. A recent case out of the Missouri Court of Appeals Western District serves as a reminder of the importance of properly designating your City’s custodian of records.
In Starr v. Jackson County Prosecuting Attorney, a group of plaintiffs sued the Jackson County prosecuting attorney for a Sunshine Law violation, claiming that the prosecuting attorney failed to timely respond to their requests as required. It was established at trial that each request was mailed generally to the prosecuting attorney’s office, either to the records department or to the assistant to the prosecuting attorney, but not to the prosecuting attorney who was listed in the Jackson County code as the custodian of records for the department, because plaintiffs never affirmatively looked to discover the proper custodian of records. Plaintiffs “assumed,” based on prior correspondence and records requests with the department, that they were sending their requests to the custodian of records. Accordingly, the Court held that plaintiffs could not establish a critical element of their claim--that a Sunshine Law request was received by the custodian of records--and therefore could not establish that the prosecuting attorney’s office had violated the Sunshine Law. The court warned, however, that it was not saying that in all cases, a Sunshine request addressed to a person other than the custodian is “fatal.” If the facts show that some person at the governmental entity deliberately “thwarted or precluded compliance” with the statute there still could be a violation of the Sunshine Law.
The idea of the custodian, as discussed in the case, is to ensure there is a single recipient of all records requests that can act as “gatekeeper” to all of the body’s records. This puts the public governmental body in the best place to ensure compliance with its obligations under the Sunshine Law, and makes it easier for the public to hold the entity responsible if it fails to comply. Cities should review their codes to make sure (1) that they have clearly designated a custodian of records as required by law, and (2) that the person or position listed is appropriately designated in order to meet the needs required as “gatekeeper” of the city’s records.
It should be noted, however, that it is probably not good policy for a person working for the government who is not the custodian of records but who receives a Sunshine request to simply ignore the request based on this case. The person should immediately pass the request on to a supervisor or the city attorney to determine the governmental body’s duty under the Sunshine Law.