“[I]n camera review is a practical remedy that would resolve any factual dispute, 19 while at the same time maintaining confidentiality of documents that may be exempt from disclosure under the Sunshine Law.”
How later courts described this case
- “[I]n camera review is a practical remedy that would resolve any factual dispute, 19 while at the same time maintaining confidentiality of documents that may be exempt from disclosure under the Sunshine Law.”
Written by the judges who cited it.
The opinion
In the
Missouri Court of Appeals
Western District
CITY OF HARRISONVILLE, ET AL.,
Appellants,
v.
WD85091
MISSOURI DEPT. OF NATURAL OPINION FILED:
RESOURCES AND BOARD OF FEBRUARY 21, 2023
TRUSTEES FOR THE PETROLEUM
STORAGE TANK INSURANCE
FUND,
Respondents.
Appeal from the Circuit Court of Cole County, Missouri
The Honorable Daniel R. Green, Judge
Before Division One: Anthony Rex Gabbert, Presiding Judge, W. Douglas Thomson,
Judge, Janet Sutton, Judge
City of Harrisonville and Brad Ratliff (the “City” collectively) appeal the circuit
court’s grant of summary judgment in favor of the Missouri Department of Natural
Resources (the “Department”) and the Board of Trustees for the Petroleum Storage Tank
Insurance Fund (the “Fund Board”)1 on the City’s “Petition for Damages” which alleged
1
The Department and the Fund will collectively be referenced as “Respondents”.
that the Department knowingly and purposefully violated Missouri’s Sunshine Law2 by
delaying responses and hiding records sought in the City’s Sunshine Law requests, and
knowingly and purposefully violated the Missouri Sunshine Law by withholding public
records under inapplicable exceptions to the law. On appeal, the City contends the circuit
court 1) erred in granting summary judgment to Respondents because the record sought
by the city (the “Walters Letter”) is not a closeable record under Section 610.021(3),3 in
that it does not contain personal information related to the hiring, firing, disciplining, or
promoting of an employee; 2) erred in granting summary judgment to Respondents
because the Walters Letter is not a closeable record under Section 610.021(13), in that it
does not relate to individually identifiable personnel records, performance ratings, or
records of Carol Eighmey; 3) erred in granting summary judgment to Respondents
because the Walters Letter is not a closed record under Section 610.021(3) or (13), in that
disclosure of the record does not infringe on Eighmey’s privacy rights; 4) erred in
granting summary judgment to Respondents because a genuine issue of material fact
remains disputed, in that the City offered a statement by the Walters Letter’s author
which contradicted Respondents’ affidavits regarding the record’s content and ability to
2
The body of Missouri statutes which govern whether meetings, records, votes, actions,
and deliberations of public governmental bodies are open to the public, Sections 610.010
et seq., RSMo, are often referenced as the “Sunshine Law.” See Laut v. City of Arnold,
491 S.W.3d 191, 193 (Mo. banc 2016).
3
Statutory references are to the Revised Statutes of Missouri, as updated through August
2020, unless otherwise noted.
2
be closed; 5) erred in denying summary judgment to the City because Respondents
knowingly violated Missouri’s Sunshine Law, in that the Department asserted baseless
exceptions of Section 610.021 that it knew did not apply to the Walters Letter; 6) erred in
denying summary judgment to the City because Respondents knowingly violated
Missouri’s Sunshine Law, in that Respondents withheld the Walters Letter in its entirety
without producing a redacted version; and, 7) erred in denying summary judgment to the
City because Respondents purposefully violated Missouri’s Sunshine Law, in that
Respondents had a conscious plan to deny access to the Walters Letter. We affirm.
Background and Factual Information
The Department is an agency of the State of Missouri, created under Section
640.010 to administer programs relating to environmental control and conservation and to
manage the natural resources of Missouri. A director is in charge of the Department and
administers “the programs assigned to the department relating to environmental control
and the conservation and management of natural resources.” Id. The Department’s
director also “coordinate[s] and supervise[s] all staff and other personnel assigned to the
department.” Id. The Department’s director “recommend[s] policies to the various
boards and commissions assigned to the department to achieve effective and coordinated
environmental control and natural resource conservation policies.”
The Department regulates and sets standards for underground petroleum storage
tanks. §319.100 to §319.139. The “Petroleum Storage Tank Insurance Fund” (the
“Fund”) is a special trust fund within the State treasury. §319.129.1. The Fund
3
reimburses allowable costs for cleaning up petroleum contamination from certain
petroleum storage tanks that were taken out of use before December 31, 1991.
§319.131.9 and .10. Additionally, for owners and operators of petroleum storage tanks
that are actively in use, the Fund is used to indemnify certain allowable first-party and
third-party claims arising from accidental petroleum releases, as well as providing the
defense of eligible third-party claims. §319.131.1, .4-.6.
The general administration of the Fund and the responsibility for the proper
operation of the Fund, including all decisions relating to payments from the Fund, are
vested in a board of trustees, i.e. the Fund Board. §319.129.4. The director of the
Department, or a designee of the director, is a statutorily required member of the Fund
Board. Id. The Fund Board is a type III agency within the State of Missouri, and the
Fund Board is statutorily required to appoint an executive director, and other employees
as necessary, for the Fund. §319.129.8. The executive director is in charge of “the
offices, operations, records, and other employees of the board, subject to the direction of
the board.” Id. Staff resources for the Fund may be provided by the Department, with
the Fund compensating the Department for all costs of providing staff. §319.129.9.
Carol Eighmey was the executive director of the Fund prior to her retirement in
2020. Williams and Company Consulting, Inc. (“Williams & Co.”) contracts with the
Fund Board to provide the Fund Board with Fund administration services. David Walters
is a former employee of Williams and Co. In 2018, Walters sent a letter (the “Walters
Letter”) to the Department director, Carol Comer, and copied the letter to the Fund
4
Board’s chairperson. The parties agree that the Walters Letter concerned Eighmey’s
conduct while she served as executive director of the Fund.
On July 16, 2020, the City (through counsel) sent a Sunshine Law request to the
Department seeking the Walters Letter; the request also sought any correspondence
regarding the Walters Letter. On August 21, 2020, the City made a second Sunshine Law
request which sought correspondence between the Department and other public entities,
such as the Missouri Attorney General’s Office and the Fund Board, which regarded the
first request.
The Department acknowledged receipt of the requests on the same days the
requests were sent by the City, and later provided more specific time frames as to when
the Department’s responses could be expected. On September 28, 2020, the Department
responded to both requests. With regard to the July 16, 2020 request, the Department
stated:
Please find attached to the e-mail this letter came in the records
responsive to your firm’s request dated July 16, 2020. Other records found
that were responsive to your requests have been closed pursuant to Section
610.021(1), (3), (13), and potentially (14), RSMo. They are personnel and
personal information related and carry legal work product and privilege
protections.
A privilege and closed record log immediately followed. In response to the August 21,
2020 request, the Department stated:
With respect to your August 21, 2020, Sunshine Law request, the
documents sought are privileged, legal work product, and involve
communications related to pending or anticipated litigation. They are also
5
related to the documents above, which are personnel and personal
information related. They are closed pursuant to Section 610.021 (1), (3),
and (13) and potentially (14), RSMo.
A privilege and closed records log immediately followed.
On October 14, 2020, the City filed a “Petition for Damages” alleging that the
Department knowingly and purposefully violated the Missouri Sunshine Law by delaying
responses and hiding records sought in the City’s Sunshine Law requests, and knowingly
and purposefully violated the Missouri Sunshine Law by withholding public records
under inapplicable exceptions to the law. On April 26, 2021, the Fund Board filed a
motion to intervene, which the circuit court granted over the City’s objection.
On June 10, 2021, the City moved for summary judgment, arguing that the Walters
Letter did not fall within any statutory exception to the general rule of disclosure of
records held by public governmental bodies. On August 20, 2021, Respondents filed a
joint motion for summary judgment. On September 15, 2021, the Department moved the
court to review the Walters Letter and other withheld records in camera, indicating that
review of the records would allow the court to determine if they fell within an exception
to disclosure under Missouri’s Sunshine Law. On September 16, 2021, the City moved
the circuit court to review, in camera, a statement by David Walters that allegedly
described Walters’s intent in sending the Walters Letter to the Department. On
September 28, 2021, the circuit court held a hearing on the parties’ motions for summary
judgment. The court ultimately reviewed, in camera, the Walters Letter and other records
withheld by the Department, as well as the Walters statement.
6
On December 3, 2021, the circuit court entered Judgment finding there was no dispute
as to the material facts and that the Department was entitled to judgment as a matter of
law. The court granted Respondents’ joint motion for summary judgment, and denied the
City’s motion for summary judgment. The court found that the Walters Letter “is by its
nature an employment personnel record and relate[s] to personnel issues” and referenced
“Sections 610.021.3 and 610.021.13 RSMo.” The court found “that the e-mails that were
closed by Defendant related to a closed document and/or contained privileged
communications not subject to disclosure.” Additionally, the court found that the
Department did not commit a knowing or purposeful violation of the Missouri Sunshine
Law. This appeal follows.
Standard of Review
The standard of review for a preserved appeal challenging the grant of a motion for
summary judgment is de novo. ITT Com. Fin. Corp. v. Mid-Am. Marine Supply Corp.,
854 S.W.2d 371, 376 (Mo. banc 1993). In such cases, we do not defer to the trial court's
decision, but instead use the same criteria that the trial court should have employed in
initially deciding whether to grant the motion. Barekman v. City of Republic, 232 S.W.3d
675, 677 (Mo. App. 2007) (internal citations omitted). We review the record in the light
most favorable to the party against whom judgment was entered, and accord that party
the benefit of all inferences which may reasonably be drawn from the record. Id.
Summary judgment is appropriate where the moving party has demonstrated, on the basis
of facts as to which there is no genuine dispute, a right to judgment as a matter of law.
7
ITT Com. Fin. Corp., 854 S.W.2d at 376. A genuine issue that will prevent summary
judgment exists where the record shows two plausible, but contradictory, accounts of the
essential facts and the genuine issue is real, not merely argumentative, imaginary, or
frivolous. Id. at 382. “Facts set forth by affidavit or otherwise in support of a party’s
motion are taken as true unless contradicted by the non-moving party’s response to the
summary judgment motion.” Id. at 376. The moving party bears the burden of
establishing a legal right to judgment and the absence of any genuine issue of material
fact required to support the claimed right to judgment. Id. at 378.
A ‘defending party’ may establish a right to summary judgment by
showing: (1) facts negating any one of the claimant’s elements; (2) that the
party opposing the motion has presented insufficient evidence to allow the
finding of the existence of any one of the claimant’s elements; or (3) that
there is no genuine dispute as to the existence of each of the facts necessary
to support a properly pleaded affirmative defense.
Ameristar Jet Charter, Inc. v. Dodson Intern. Parts, Inc., 155 S.W.3d 50, 58-59 (Mo. banc
2005).
Points on Appeal
Points I-III – Closed Record Under Section 610.021
In the City’s first, second, and third points on appeal, the City contends that the
circuit court erred in granting summary judgment in favor of Respondents, arguing that
8
the Walters Letter4 is not a closed record under Section 610.021(3) or (13) because the
Walters Letter does not contain personal information related to the hiring, firing,
disciplining or promoting of an employee (Point I), does not relate to individually
identifiable personnel records, performance ratings, or records of Eighmey (Point II), and
does not infringe on Eighmey’s privacy rights (Point III).
The Sunshine Law provides that, “[i]t is the public policy of this state that
meetings, records, votes, actions, and deliberations of public governmental bodies be
open to the public unless otherwise provided by law. Sections 610.010 to 610.200 shall
be liberally construed and their exceptions strictly construed to promote this public
policy.” § 610.011.1. Where “a specific statute requires disclosure of a specific type of
public record, section 610.021 may not be relied on to maintain closure, although it
would otherwise apply.” Guyer v. City of Kirkwood, 38 S.W.3d 412, 414 (Mo. banc
2001). Further, “where more than one provision of chapter 610 applies to a record, the
decision to open or close the record must be informed by the express public policy stated
in section 610.011.1, which is that all records of public governmental bodies are
presumed to be open records and that the exceptions in sections 610.010 to 610.028,
including those in section 610.021, are to be strictly construed to promote that policy.”
Id. “[S]ection 610.011.1 should be used as a tiebreaker in favor of disclosure when
4
The City only addresses the Walters Letter in its appeal, and has apparently abandoned
its claim that the other records requested by the City and withheld by the Department
were unjustifiably closed.
9
records fit equally well under two specific but opposite provisions of the Sunshine Law.”
Id.
Here, there is no dispute that the Walters Letter is in the possession of a public
governmental body. There is also no claim by the City that, other than the general open
records provisions of Missouri’s Sunshine Law, any other specific law, or provision
within the Sunshine Law, requires disclosure of the Walters Letter. The City’s claim is
that the Walters Letter is a public record because it is being held by a public
governmental body, and the Department had no discretion to close the Walters Letter
under any Section 610.021 exception, including Section 610.021(3) or Section
610.021(13).
Section 610.021(3) of Missouri’s Sunshine Law provides that, except to the extent
that disclosure is otherwise required by law, a public governmental body is authorized to
close records to the extent they “relate to” the “[h]iring, firing, disciplining or promoting
of particular employees by a public governmental body when personal information about
the employee is discussed or recorded.” “Personal information” is defined within the
provision as “information relating to the performance or merit of individual employees.”
Id.5
5
Section 610.021(13) provides, in part, that, except to the extent that disclosure is
otherwise required by law, a public governmental body is authorized to close records to
the extent that they relate to “[i]ndividually identifiable personnel records, performance
ratings or records pertaining to employees or applicants for employment[.]”
10
The Department’s Custodian of Records, Ronald Veltrop, attested to various
aspects of the Walters Letter, and Veltrop’s affidavit was included in the summary
judgment record. As relevant here, Veltrop attested that, 1) he reviewed the Walters
Letter in his position as Custodian of Records for the Department, 2) the letter discusses
Walters’s observations of the performance and merits of Eighmey as a state government
employee, 3) Walters addressed the letter to Department Director Carol Comer, stating
that the Department provides human resources services to Eighmey, and 4) the letter
closes seeking changes to Eighmey’s behavior as a state government employee.6 An
affidavit by Kelley J. Ogletree, Eighmey’s successor and current executive director of the
Fund, was also part of the summary judgment record. With regard to the Walters Letter,
Ogletree’s affidavit states that the letter “discusses Mr. Walters’ observation of the
performance and merits of Carol Eighmey as a state government employee,” “alleges that
Carol Eighmey created a hostile work environment,” and “sought changes to Carol
Eighmey’s behavior as a state governmental employee.” Upon review of the Walters
Letter, we find these averments accurate.7
6
In so requesting, Walters references Eighmey as “your employee.”
7
We note this only to indicate that Veltrop’s and Ogletree’s affidavits accurately reflect,
generically, the contents of the Walters Letter such that it cannot be said that, in the
summary judgment proceedings, Respondents misled the City or the court regarding the
character of the letter. Our determination as to the true nature of the Walters Letter is
based on our in camera review of the letter, not Veltrop’s or Ogletree’s averments, and it
is clear from the circuit court’s Judgment that its determination was as well.
11
Upon in camera review of the Walters Letter, we find that the Department was
authorized to close the Walters Letter pursuant to Section 610.021(3) of Missouri’s
Sunshine Law. The Walters Letter discusses Eighmey’s performance and merit as a state
employee. The Walters Letter was sent to the Department director who serves, either
personally or via a designee, on the Fund Board which hired, and could ultimately
discipline and/or fire, Eighmey. The Walters Letter asks the Department director to
intervene with regard to the behavior of the Department director’s “employee,” Eighmey.
As such, the Walters Letter relates to the “hiring, firing, disciplining or promoting of
particular employees by a public governmental body when personal information about
the employee is discussed or recorded.” § 610.021(3).
The City argues that if Eighmey was not disciplined as a result of the Walters
Letter, then the Walters Letter cannot fit within Section 610.021(3)’s exception to
disclosure. The City states that “the record is only closeable if it relates to an
employment action taken against the employee,” and it is not enough to say that
“employment action could have been taken because of a record.” Yet, the Walters Letter
unequivocally discusses Eighmey’s performance and merit in her position as executive
director of the Fund. It also unequivocally asks the Department director to act in
response to the letter. There are any number of situations in which a person’s work
performance and/or merits as an employee will be recorded in the context of hiring,
firing, discipline, and promotion, but the fact that a person is not hired, fired, disciplined,
12
or promoted does not change the nature of the record, or mean that the record does not
relate to hiring, firing, disciplining, or promoting.8
The City additionally argues that nearly any document could lead to an
employment action such that Section 610.021(3)’s exception would then “swallow the
rule.” Yet, the legislature expressly provided Section 610.021(3) as an exception to the
general rule of disclosure, and where a record fits within the exception, then a public
governmental body is authorized to close the record unless another specific law or statute
requires disclosure. See Guyer, 38 S.W.3d at 414. The Walters Letter fits within this
exception, and there is no claim by the City that any other law, or a specific competing
provision of the Sunshine Law, requires disclosure.
The City also argues that the Walters Letter is tantamount to an “incident report”
under Section 610.100.1(4) and Guyer v. City of Kirkwood, and we should treat it as
such.9 We cannot.
Guyer involved a Sunshine Law request for records held by a police department
involving an internal investigation of a police officer. 38 S.W.3d at 413. The City of
8
In Guyer v. City of Kirkwood, a complaint and ensuing internal investigation which
deemed the complaint unfounded were considered by the Missouri Supreme Court as
records containing “information relating to the performance or merit of individual
employees,” as well as “personnel records,” despite the complaint being unfounded such
that no discipline would have occurred. 38 S.W.3d at 413-414. Guyer is explained
further below.
9
The City discusses Guyer in its second point on appeal, which we need not fully address
given our disposition of the City’s first point, but nevertheless discuss Guyer here
because the Supreme Court also addressed Section 610.021(3) in Guyer.
13
Kirkwood received a citizen complaint alleging that Officer Steven Guyer had engaged in
wrongdoing. Id. An investigation concluded that the complaint was unfounded, at which
point Guyer requested a copy of the investigative report, as well as the identity of the
complainant and the specifics of the complaint. Id. The City denied the request, citing
Sections 610.021(3) and (13). Id.
The Missouri Supreme Court held that, if the records qualified as an incident
report or an investigative report (of a closed investigation) under Section 610.100, the
records were subject to disclosure under that provision, and Sections 610.021(3) and (13)
could not be used to avoid disclosure. Id. at 415. “Incident report” within the Sunshine
Law is defined as “a record of a law enforcement agency consisting of the date, time,
specific location, name of the victim and immediate facts and circumstances surrounding
the initial report of a crime or incident, including any logs of reported crimes, accidents
and complaints maintained by that agency[.]” §610.100.1(4). “Investigative report” is
defined as “a record, other than an arrest or incident report, prepared by personnel of a
law enforcement agency, inquiring into a crime or suspected crime, either in response to
an incident report or in response to evidence developed by law enforcement officers in
the course of their duties.” §610.100.1(5).
In analyzing the issues, the Court stated:
At first glance, the records in this case appear to qualify both as
incident and investigative reports under section 610.100, which are open
records, and as ‘personnel records,’ or records containing ‘information
relating to the performance or merit of individual employees’ under section
610.021, which are records that may be closed. However, the permissive
14
closure available in section 610.021 is qualified by its own terms, that is,
records may not be closed under that section ‘to the extent disclosure is
otherwise required by law.’ Where, as here, a specific statute requires
disclosure of a specific type of public record, section 610.021 may not be
relied on to maintain closure, although it would otherwise apply.
Furthermore, in cases like this, where more than one provision of
chapter 610 applies to a record, the decision to open or close the record
must be informed by the express public policy stated in section 610.011.1,
which is that all records of public governmental bodies are presumed to be
open records and that the exceptions in sections 610.010 to 610.028,
including those in section 610.021, are to be strictly construed to promote
that policy. In effect, section 610.011.1 should be used as a tiebreaker in
favor of disclosure when records fit equally well under two specific but
opposite provisions of the Sunshine Law.
Id. at 414.
Of note, the Court considered the complaint and investigative records to be
records containing “information relating to the performance or merit of individual
employees” and “personnel records” under Sections 610.021(3) and (13), respectively.
Id. Disclosure of the original citizen’s complaint was nevertheless required, because the
record also qualified as an “incident report” under Section 610.100.1(4). Id. at 415. With
regard to the investigation documents, the Court remanded the matter back to the circuit
court because it was unclear if the citizen complaint implicated any criminal conduct so
as to qualify as an “investigative report” under Section 610.100.1(5). Id. If so, disclosure
was required; if not, the Court’s remand suggested that disclosure would only then be
15
discretionary due to Section 610.021(3) and (13)’s exceptions to disclosure. Id. at 414.
The “incident report” exception in 610.100.1(4), however, cannot be applied to the
Walters Letter. The incident and investigative report exceptions only apply to law
enforcement agencies, and the Department was not acting as a law enforcement agency.
To treat the Walters Letter as an “incident report,” as advocated by the City, would
impermissibly usurp clear legislative intent, and we are obligated to construe the plain
language of statutes as enacted by the Missouri legislature, without adding statutory
language where it does not exist. Li Lin v. Ellis, 594 S.W.3d 238, 244 (Mo. banc 2020).10
The City additionally argues that, it cannot be the policy of this State that an
outside complaint of a public official’s on-the-job conduct can be shielded as an
employment record, because such would allow a school board to close a complaint by a
student alleging a teacher had abused the student. Yet, as we know from Guyer, the
records of different public governmental bodies may be governed by rules specific to the
type of record that is being requested for public disclosure. Similar to law enforcement
records, educational records of students are separately addressed in the Sunshine Law,
requiring disclosure of such records to those undoubtedly most impacted by the contents
10
The City also argues that the Walters Letter is “more analogous to a complaint about a
police officer as it was sent by a third party.” Nothing within Guyer focuses on the
source of the records. The Court clearly stated that the records were “personnel records”
or records containing “information related to the performance or merit of individual
employees” under Section 610.021, but subject to disclosure if they also qualified as an
incident or investigative report under Section 610.100.
16
– parents, guardians, custodians, and students. §610.021(6). Disclosure of such records
to these same individuals is “otherwise required” by federal law pursuant to the Family
Educational Rights and Privacy Act (FERPA), 20 U.S.C. § 1232g(a), thereby usurping
any of the Sunshine Law’s exceptions to disclosure pursuant to Section 610.021 itself.11
Additionally, FERPA simultaneously protects students from the public exposure of
records maintained by an educational agency that are directly related to the student,
thereby harmonizing with Section 610.021(14) of the Sunshine Law which authorizes
closure of “records which are protected from disclosure by law.” 20 U.S.C. § 1232g(b).
Moreover, there are a number of factors and laws that must be taken into consideration
when determining whether a particular record may be publicly disclosed under the
Sunshine Law, which precludes general applications of the law merely because one
record, which might be disclosable under certain laws and contexts, appears facially
similar to another record.
It is also significant that Walters was not merely a member of the general public
who interacted with Eighmey, or observed her work performance, in that capacity.
11
Under FERPA, “education records” are records, files, documents and other materials
which “contain information directly related to a student” and are maintained by an
educational agency or person acting for such agency. 20 U.S.C. § 1232g (a)(4)(A). A
record directly relating to both a teacher and a student is disclosable to a
parent/guardian/adult student because under 20 U.S.C. § 1232g (a)(4)(B)(iii), only
records maintained by an educational institution that are “exclusively related” to an
employee in that person’s capacity as an employee, that are not available for use for any
other purpose, are excluded from the definition of “education record.”
17
Instead, Walters worked for Williams and Co., which contracted with the Fund Board to
provide administrative services for the Fund. It is in that capacity, as an employee of a
contractor providing administrative services to the Fund, that Walters observed the
conduct which his letter describes. This is not simply an “outside complaint,” as the City
insinuates.
The circuit court did not err in granting summary judgment in favor of
Respondents, as the Walters Letter is a closed record under Section 610.021(3). The
City’s first point on appeal is denied, and this denial obviates the need to determine if the
Walters Letter is also a “personnel record” pursuant to Section 610.021(13) (Point II), or
if public disclosure would infringe on Eighmey’s privacy rights (Point III).
Point IV – Genuine Issue of Material Fact
In the City’s fourth point on appeal, the City contends that the circuit court erred
in granting summary judgment to Respondents because a genuine issue of material fact
remains disputed, arguing that the City offered a statement by the Walters Letter’s author,
David Walters, which contradicted Respondents’ self-serving affidavits regarding the
Walters Letter’s content and ability to be closed.
First, we note that the undated, unsworn statement by David Walters that was
provided for in camera review by the City was not part of the summary judgment record;
it was not referenced or provided in response to any material fact set forth by
Respondents, or used to support any material fact set forth by the City in its own motion
for summary judgment. The court’s gratuitous review of the statement did not add the
18
statement to the summary judgment record such that it could create a genuine dispute as
to a material fact. See Green v. Fotoohighiam, 606 S.W.3d 113, 118 (Mo. banc 2020)
(“[M]otions for summary judgment are decided only on those facts—along with properly
cited pleadings, discovery, exhibits, or affidavits—referenced in Rule 74.04(c) paragraphs
and responses, not the entire trial court record.” (citation omitted)).
Second, despite the City’s argument on appeal that Respondents’ affidavits and
Walter’s statement now create a disputed issue of material fact as to the contents of the
Walters Letter, the City asked the circuit court to “do its own review of the requested
documents,” arguing in “Plaintiffs Opposition to Summary Judgment Motion of
Defendant and Intervenor” that “[t]he best evidence of the contents of the Walters Letter
is the letter itself.” The City cited Laut v. City of Arnold, 417 S.W.3d 315, 319-20 (Mo.
App. 2013), which held a trial court to have had insufficient evidence to enter summary
judgment in a Sunshine Law dispute where the trial court never reviewed the records at
issue. Here, the Walters Letter was produced for in camera review, and relied upon by
the court for its ultimate conclusion that the Walters Letter is exempt from disclosure
under the Sunshine Law.
In camera review has long been deemed a proper means for the trial court to
determine how Sunshine Law exemptions and disclosure requirements apply to the
records at the heart of the dispute. See City of Byrnes Mill v. Limesand, 599 S.W.3d 466,
475 (Mo. App. 2020); see also Laut v. City of Arnold, 417 S.W.3d 315, 326 (Mo. App.
2013) (“[I]n camera review is a practical remedy that would resolve any factual dispute,
19
while at the same time maintaining confidentiality of documents that may be exempt
from disclosure under the Sunshine Law.”) Although affidavits that are part of a
summary judgment record may provide context, and might even harm a party in a
knowing/purposeful violation accusation if an affidavit were to characterize a record in a
manner wholly inconsistent with the contents, where the disputed records are before the
court, a determination as to the character of the records in relation to the Sunshine Law is
ultimately governed by the records themselves, and not affidavits by the parties which
purport to describe the contents.
Third, even if David Walter’s statement was included in the summary judgment
record and its significance not superseded by the Walters Letter itself, its contents create
no genuine issue of material fact. The City advised the court in submitting David
Walter’s statement that the statement “describes [Walter’s] intent” in sending the Walters
Letter to the Department. On appeal, the City argues that the Walters statement
contradicts Respondents’ “self-serving affidavits regarding the Letter’s content and
ability to be closed.” Upon review of the statement, we find no description of the Walters
Letter’s intent that cannot be gleaned from the Walters Letter itself, and no contradictions
with the Department’s affidavits. The statement contains twenty numbered paragraphs,
and only Paragraphs #7 and #8, taken together, appear to indicate why the Walters Letter
was sent. Yet, both Paragraphs #7 and #8, like the Walters Letter, relate to Eighmey’s
performance or merit as the executive director of the Fund.
20
The circuit court did not err in granting summary judgment to Respondents, as the
statement by David Walters did not create a genuine issue of material fact in the summary
judgment proceeding.
Point IV is denied.
Point V-VII – Knowing and Purposeful Violations
In its fifth point on appeal, the City contends that the circuit court erred in denying
summary judgment for the City,12 arguing that Respondents knowingly violated
Missouri’s Sunshine Law when the Department asserted baseless exceptions of Section
610.021 that it knew were inapplicable to the Walters Letter. The City argues that, among
other exceptions, the Department asserted that the Walters Letter was being closed
pursuant to Section 610.021(1) (which allows closure of records that relate to legal
actions or litigation, and confidential or privileged communications between a public
governmental body or its representatives and its attorneys), and “potentially” Section
610.021(14) (which allows closure of records that are protected from disclosure by law).
12
Generally, a trial court’s overruling of a motion for summary judgment is not subject to
appellate review. Bob DeGeorge Associates, Inc. v. Hawthorn Bank, 377 S.W.3d 592,
596 (Mo. banc 2012). However, when its merits are intertwined completely with a grant
of summary judgment in favor of an opposing party, such is reviewable. Id. at 597.
Respondents do not contest the propriety of the City’s claims which involve the circuit
court’s failure to grant summary judgment to the City. These particular claims address
issues that the circuit court could have found in favor of the City, despite the court
concluding that Sections 610.021(3) and (13) permit closure of the Walters Letter.
21
The City contends that the fact the Department supplied no evidence to support these
exceptions, and later abandoned them, proves a knowing Sunshine Law violation.13
“Section 610.027 allows any aggrieved person to seek judicial enforcement of the
Sunshine Law and provides the remedies of civil monetary penalties, costs and attorney’s
fees for knowing or purposeful violations of that law.” Laut v. City of Arnold, 491
S.W.3d 191, 197 (Mo. banc 2016). Section 610.027 states, in relevant part:
3. Upon a finding by a preponderance of the evidence that a public
governmental body or a member of a public governmental body
has knowingly violated sections 610.010 to 610.026, the public
governmental body or the member shall be subject to a civil penalty in an
amount up to one thousand dollars. If the court finds that there is a knowing
violation of sections 610.010 to 610.026, the court may order the payment
by such body or member of all costs and reasonable attorney fees to any
party successfully establishing a violation. The court shall determine the
amount of the penalty by taking into account the size of the jurisdiction, the
seriousness of the offense, and whether the public governmental body or
member of a public governmental body has violated sections 610.010
to 610.026 previously.
4. Upon a finding by a preponderance of the evidence that a public
governmental body or a member of a public governmental body
has purposely violated sections 610.010 to 610.026, the public
13
The City does not argue that credibility determinations as to intent still need to be made
such that the circuit court should not have ruled on the City’s knowing/purposeful
violation allegations; the City argues that the record proves knowing/purposeful
violations and the court erred in failing to grant summary judgment to the City on these
issues. We address the City’s claims as presented on appeal. (See Petruska v. City of
Kinloch, 559 S.W.3d 386 (Mo. App. 2018), wherein the Eastern District remanded a
matter to a trial court after the trial court found in a summary judgment proceeding that a
City violated the Sunshine Law but that the violation was not knowing or purposeful.
The appellate court determined that, because the City’s intent when violating the law
required the trial court to make credibility determinations and draw inferences, it should
not have been resolved at the summary judgment stage. Id. at 388.)
22
governmental body or the member shall be subject to a civil penalty in an
amount up to five thousand dollars. If the court finds that there was a
purposeful violation of sections 610.010 to 610.026, then the court shall
order the payment by such body or member of all costs and reasonable
attorney fees to any party successfully establishing such a violation. The
court shall determine the amount of the penalty by taking into account the
size of the jurisdiction, the seriousness of the offense, and whether the
public governmental body or member of a public governmental body has
violated sections 610.010 to 610.026 previously.
“[A] knowing violation requires proof that the public governmental body had actual
knowledge that its conduct violated a statutory provision.” Laut, 491 S.W.3d at 198.
(internal quotation marks and citation omitted). A purposeful violation occurs when the
public governmental body acts with a “conscious design, intent, or plan to violate the law
and did so with awareness of the probable consequences.” Id.
As noted above, the City argues that a knowing Sunshine Law violation is proven
by the record because the Department asserted, among other Sunshine Law exemptions,
that the Walters Letter was being closed pursuant to Section 610.021(1) and (14), and the
Department’s abandonment of these exemptions proves the Department knew the
exemptions were inapplicable. Yet, the City ignores that its initial Sunshine Law request
not only asked for disclosure of the Walters Letter, but also disclosure of any follow-up
letters/correspondence related to the Walters Letter. Exhibit E, provided by the City in its
Motion for Summary Judgment, is the Department’s September 28, 2020, response to the
City’s Sunshine Law requests. Exhibit E is relied upon by the City to argue that the
23
Department offered baseless exceptions to disclosing the Walters Letter. Within Exhibit
E the Department states, in relevant part:
Your July 16, 2020, request sought the production of a letter received by
our Department from Williams & Company Consulting, Inc. employee
David Walters, and any follow-up letters or correspondence related to this
letter.
Please find attached to the e-mail this letter came in the records responsive
to your firm’s request dated July 16, 2020. Other records found that were
responsive to your requests have been closed pursuant to Section
610.021(1), (3), (13), and potentially (14), RSMo. They are personnel and
personal information related and carry legal work product and privilege
protections.
We here provide a privilege and closed records log for your July 16, 2020,
request.
Immediately thereafter, the Department sets forth the privilege and closed record log.
Within the log, the Department lists seventeen records responsive to the City’s request, in
descending order by date. August 1, 2018, is the earliest entry, and the “Subject” line in
the first August 1, 2018, entry states: “Confidential – Letter from David Walters.” The
“Closed Record Exception” for this entry states: “Section 610.021 (3) (13).” Neither
Section 610.021 (1) nor Section 610.021 (14) are noted as exceptions. The first August 1,
2018, entry is the only entry naming the Walters Letter. While some of the later entries
state the Closed Record Exception as “Section 610.021 (1) (3) (13),” the entry naming the
Walters Letter does not. No entries in the privilege and closed record log cite Section
610.021 (14) as an exception for any record set forth in the log.
24
Section 610.023.4 requires that, “[i]f request for access is denied, the custodian
shall provide, upon request, a written statement of the grounds for such denial. Such
statement shall cite the specific provision of law under which access is denied[.]” The
City does not dispute that the privilege and closed record log satisfied this requirement.
We find it apparent after considering Exhibit E in its entirety that the statement, “Other
records found that were responsive to your requests have been closed pursuant to Section
610.021 (1), (3), (13), and potentially (14), RSMo,” which immediately precedes the
privilege and closed record log, is a general statement encompassing all records
requested by the City. The privilege and closed record log, however, identifies the
exemptions relied upon for each individual record being withheld. Section 610.021 (1)
and (14) were not exemptions relied upon by the Department with regard to the Walters
Letter.
The circuit court did not err in denying summary judgment to the City on the
City’s claim that Respondents knowingly violated Missouri’s Sunshine Law when the
Department asserted Section 610.021 (1) and (14) as exceptions to disclosure of the
Walters Letter. The record does not unequivocally support that the Department cited
Sections 610.021 (1) and (14) as exceptions to the Walters Letter. The City, therefore, did
not demonstrate a right to judgment as a matter of law on this issue.
25
Point V is denied.14
In the City’s sixth point on appeal, the City contends that the circuit court erred in
denying summary judgment to the City, arguing that Respondents knowingly violated
Missouri’s Sunshine Law when Respondents withheld the Walters Letter in its entirety
without producing a redacted version. The City first argues that, because Respondents
used affidavits by Kelly Ogletree and Ronald Veltrop to support their motion for
summary judgment, the statements made within those affidavits required the
corresponding portions of the Walters Letter to be made public. We disagree.
Section 610.024 provides that, “[i]f a public record contains material which is not
exempt from disclosure as well as material which is exempt from disclosure, the public
governmental body shall separate the exempt from the nonexempt material and make the
nonexempt material available for examination and copying.” Under Section 610.021, a
public governmental body is not required to close a record that fits within an exemption.
At its discretion, the governmental body may disclose none, all, or any portion of a
permissibly closable record. Here, we discussed above that the Department was
authorized to close the Walters Letter under Section 610.021(3). Respondents’ statements
regarding the content of the Walters Letter made within affidavits during the summary
14
The City’s additional claim that the Department knowingly asserted baseless
exceptions because it had previously produced the same type of letter in response to a
2018 Sunshine Law request is also without merit. The Section 610.021 exemptions from
disclosure give public governmental bodies the discretion to close records, but do not
mandate records closure.
26
judgment proceedings did not require Respondents to produce any portions of the Walters
Letter.
The City additionally argues that the Department should have provided a redacted
version of the Walters Letter because of Section 610.021(13)’s exception to the personnel
records exemption, which states that “this exemption shall not apply to the names,
positions, salaries and lengths of service of officers and employees of public agencies
once they are employed as such.” The City suggests that, if any public employees are
mentioned within the Walters Letter, then at the very least that information should have
been produced with the remainder redacted. We disagree. We interpret Section
610.021(13)’s exception to the exemption to regard a generic Sunshine Law request for
names, positions, salaries, and lengths of service of officers and employees of public
agencies. We do not believe that it requires production of the names, etc., of any and all
employees that might be discussed within another employee’s personnel record, or
records that include information relating to the performance or merit of an employee that
regards the hiring, firing, disciplining or promoting of an employee. The City’s
argument, taken to its logical end, would mean that a Sunshine Law request could be
made for records of every employee of a public governmental body who, for example,
had been disciplined by the employer. Under the City’s argument, the governmental
body would then have to produce the names of those individuals, which would then
identify employees subjected to discipline, despite that information being protected under
Section 610.021(3) and Section 610.021(13). Further, even if the statute could be
27
interpreted as the City desires, the City failed to produce in its summary judgment record
any proof that the City’s interpretation is founded in precedent such that the Department
could be said to have actual knowledge that its conduct violated a statutory provision.
The circuit court did not err in denying summary judgment to the City on its claim
that Respondents knowingly violated Missouri’s Sunshine Law by withholding the
Walters Letter in its entirety without producing a redacted version. The City failed to
prove a right to judgment as a matter of law.
Point VI is denied.
In the City’s seventh point on appeal, the City contends that the circuit court erred
in denying summary judgment to the City on its claim that Respondents purposefully
violated the Sunshine Law, arguing that Respondents had a conscious plan to deny access
to the Walters Letter. The City argues that the plan was to first delay any response, then
assert baseless exceptions.
With regard to alleged delayed responses, the City did not develop in the summary
judgment record any proof that delays in production were not necessary and legitimate, or
that the Department admitted to purposefully delaying production. With regard to the
alleged baseless exceptions, as discussed above, the City failed to prove in the summary
judgment record that Respondents asserted baseless exceptions to disclosure. The City,
therefore, fails to prove a right to judgment as a matter of law on its claim that
Respondents purposefully violated the Sunshine Law.
28
The circuit court did not err in denying summary judgment for the City on its
claim that Respondents purposefully violated Missouri’s Sunshine Law by having a
conscious plan to deny access to the Walters Letter, as the City failed to prove a right to
judgment as a matter of law on this issue.
Point VII is denied.
Conclusion
We conclude that the circuit court 1) did not err in granting summary judgment to
Respondents pursuant to Section 610.021(3), as the Walters Letter contains information
relating to the performance or merit of Eighmey and the hiring, firing, disciplining, or
promoting of an employee; 2) did not err in granting summary judgment to Respondents
because the statement by David Walters did not create a genuine issue of material fact in
the summary judgment proceeding; 3) did not err in denying summary judgment to the
City on its claim that Respondents knowingly violated Missouri’s Sunshine Law by
knowingly asserting baseless exceptions with regard to the Walters Letter, as the City
failed to demonstrate a right to judgment as a matter of law; 4) did not err in denying
summary judgment to the City on its claim that Respondents knowingly violated
Missouri’s Sunshine Law by withholding the Walters Letter in its entirety without
producing a redacted version, as the City failed to prove a right to judgment as a matter of
law; 5) did not err in denying summary judgment to the City on its claim that
Respondents purposefully violated Missouri’s Sunshine Law by having a conscious plan
29
to deny access to the Walters Letter, as the City failed to prove a right to judgment as a
matter of law.
The circuit court’s judgment is affirmed.
Anthony Rex Gabbert, Judge
All concur.
30