GARY M. GAERTNER, Jr., Judge.
Rachel Laut (Laut) and John Soellner (Soellner) (collectively referred to as Appellants) appeal the trial court's summary judgment in favor of the City of Arnold (City), on Appellants' petition seeking disclosure of documents under Missouri's Sunshine Law, Chapter 610, RSMo. (Supp. 2012).
Laut and Soellner each had some form of a personal relationship with one or more employees of the City's Police Department. Appellants developed a good faith belief that one or more of these employees had improperly accessed Appellants' confidential records contained in an electronic law enforcement database called the Regional Justice Information System (REJIS). In September of 2010, Laut made a complaint to the City regarding two City Police Department employees, dispatcher Linda Darnell (Darnell) and Sergeant Darren Rodgers
On October 11, 2010, Appellants' counsel sent a letter to the City requesting disclosure of several documents pursuant to Section 610.100 of Missouri's Sunshine Law, including reports and records regarding investigations and communications about Darnell's and Rodgers' use of REJIS, background checks of Appellants, and any subsequent disciplinary action. The letter stated Appellants' request was for the purpose of investigating civil claims. On October 14, 2010, the City responded by letter, informing Appellants that there was no criminal investigation performed regarding Darnell and Rodgers. The letter also stated that the records responsive to Appellants' request were exempt from disclosure under Section 610.021.3 of the Sunshine Law.
Our review of summary judgment is essentially de novo. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). We uphold the summary judgment if (1) there is no genuine dispute of material fact, and (2) the movant is entitled to judgment as a matter of law. Id. We view the facts and supporting affidavits in the light most favorable to the non-movant, and we accord the non-movant the benefit of all reasonable inferences from the record. Id. "As the trial court's judgment is founded on the record submitted and the law, an appellate court need not defer to the trial court's summary judgment." Id.
Appellants' sole point on appeal is that the trial court erred as a matter of law in granting summary judgment in favor of the City. Appellants argue the information they sought was not closed information because the underlying conduct was criminal in nature, and the Sunshine Law requires disclosure of records regarding criminal investigations. Appellants also argue the trial court therefore erred in denying their request for costs and attorney's fees based on the City's violation of the Sunshine Law. We address each of these arguments in turn.
The overarching purpose of the Sunshine Law is one of open government and transparency. Smith v. Sheriff, 982 S.W.2d 775, 778 (Mo.App. E.D.1998).
Specifically, Appellants requested two types of documents, investigative reports and any other records,
However, this section's exemptions must be read together with the rest of the Sunshine Law. The Missouri Supreme Court has noted the permissive language of Section 610.021, that the section is qualified by its own terms, and that it applies only where disclosure is not otherwise required by law. Guyer v. City of Kirkwood, 38 S.W.3d 412, 414 (Mo. banc 2001) (finding exemptions not applicable where a particular type of document fits equally under exemption and other section requiring disclosure). Thus, the threshold question for determining whether a document may be exempt from disclosure is first, whether disclosure of that document is otherwise required by law. For this, a court cannot look only at the information requested, but must also identity the types of documents at issue in order to determine first whether disclosure is mandated by law.
The trial court did not see the documents responsive to Appellants' request, nor did the court in its summary judgment analyze any sections of the Sunshine Law requiring disclosure as a threshold determination prior to considering the exemptions to disclosure under Section 610.021. Based on the record here, the relevant sections of the Sunshine Law, and their interpretation by the Missouri Supreme Court, we conclude the trial court did not have sufficient evidence to make the determination that the above exemptions in Section 610.021 apply as a matter of law to all of Appellants' requests. Because Appellants requested both public records in general and investigative reports in specific, we examine the Sunshine Law as it relates to each type of document.
In applying these provisions to Appellants' general request for records, the first two types of information Appellants requested concerned REJIS access and communication about background checks of Appellants. Neither of these specifically request "personal information" as defined by the exemption in Section 610.021.3, nor do they specifically target individual personnel records or information regarding job performance of the employees, under subsection 13. For example, a log showing a REJIS inquiry is not a personnel record or job performance rating. However, it is possible that records responsive to these requests could contain exempt information. For example, a personnel record may also contain a record of REJIS inquiries. Again, under Section 610.024, even if records contain personal information that the City is permitted to withhold under an exemption, the City is obligated to make available the public portions of the records responsive to these two requests. See State ex rel. Mo. Local Gov't Ret. Sys. v. Bill, 935 S.W.2d 659, 664 (Mo.App. W.D.1996) (request for amounts of payments made to individuals was not request for personal information; even if records contained personal information, Section 610.024.1 required public body to redact and provide requested non-exempt information).
It is unclear from the record whether the City has public records, besides any investigative report, that contain information covered by Appellants' first two requests. Thus, the record is insufficient to support the trial court's summary judgment that any responsive records were exempt from disclosure. To the extent the City has withheld any documents responsive to these first two requests that contain both exempt and non-exempt information, upon the belief that the existence of some personal information allows closure of the entire document, the City must disclose any non-exempt portion under Section 610.024.1. Moreover, it was the City's burden under Section 610.027.2 to demonstrate compliance with the Sunshine Law once Appellants showed that the City was subject to the Sunshine Law and had closed records. Thus, we remand for the trial court to examine any public records containing information covered by Appellants' first two requests and to determine
Conversely, Appellants' remaining two requests as they relate to public records besides any investigative reports, seek records containing the reasons for discipline of Darnell and Rodgers. These two requests fall squarely under the Sunshine Law's exemption in Section 610.021, 3, regarding "firing [and] disciplining ... of particular employees by a public governmental body when personal information about the employee is discussed or recorded." Again, "personal information" is "information relating to the performance or merit of the employees." Section 610.021.3. Appellants have pointed to no provision otherwise requiring disclosure of disciplinary records falling under only the general definition of public records.
Appellants argue that they limit their requests to reasons related to Appellants themselves and the alleged criminal activity, and thus they are entitled to the information; however, the exemptions in Section 610.021.3 and 13 make no exception requiring disclosure to third parties who may be part of the reason for discipline. Rather, the exemptions allow the public body to close disciplinary records at its discretion. This is precisely the kind of information sought by Appellants' third and fourth requests, and no genuine factual dispute exists regarding these two requests. The trial court did not err as a matter of law in determining that these two requests sought information from public records that the City may withhold as exempt. Thus, we affirm the trial court's summary judgment as it relates to any public records other than investigative reports, containing only information responsive to Appellants' requests for the reasons for discipline of Darnell and Rodgers.
Regarding Appellants' more specific request for investigative reports, the one document at issue here is an Internal Affairs report, which resulted from the Internal Affairs investigation Chief Shockey ordered upon receiving Laut's complaint. The City disagrees with Appellants' argument that the Internal Affairs report is an "investigative report" under the statutory definition. Based on the record here, we find a genuine factual dispute exists as to the nature of the Internal Affairs report, which precluded summary judgment regarding whether this report must be disclosed.
Section 610.100 of the Sunshine Law contains additional guidelines regarding this particular type of public record.
The key aspect of an investigative report is that it is "directed to alleged criminal conduct." Guyer, 38 S.W.3d at 415. Investigative reports "are closed records until the investigation becomes inactive."
In Guyer v. City of Kirkwood, the Missouri Supreme Court specifically considered the question of whether an internal police report fell under
The Supreme Court examined the two sections above and found that, based on the permissive language of Section 610.021's exemptions (allowing public governmental body to close records "[e]xcept to the extent disclosure is otherwise required by law") and the express public policy statement of the Sunshine Law in favor of open records (Section 610.011.1), this public policy "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. The court concluded that the requirement of open investigative reports in Section 610.100.2 (investigative reports are open records once investigation is inactive) overrides the permissive exemption for personnel records in Section 610.021. Id.
However, the Supreme Court in Guyer did not consider any application of Section 610.024, which requires a public body to separate exempt and non-exempt portions of a public record and to make the non-exempt portions available.
Again, Section 610.010 contains the definition of a "public record" and applies to the term "as used in this chapter." The definition is quite broad, encompassing "any record ... retained by or of any public governmental body." An investigative report is "a record ...," Section 610.100.1(5), retained by a type of public governmental body: a law enforcement agency. Thus, an investigative report is a type of public record under the statute. See also Guyer, 38 S.W.3d at 414 (Section 610.100 discusses "specific type of public record"). Section 610.024.1 begins, "[i]f a public record contains material...." (emphasis added). Thus, Section 610.024.1 applies to investigative reports, requiring the public governmental body to separate any exempt and non-exempt portions of the report, and to disclose the latter.
This may seem at first look to contradict Guyer. However, according to the Missouri Supreme Court there, where a document "fits equally" under an exemption and a provision requiring disclosure, the document should be disclosed, notwithstanding the fact that an exemption would otherwise apply. Guyer, 38 S.W.3d at 414. Thus, to the extent an internal police report, or portions thereof, can equally be considered both a personnel record and an investigative report, it, or those portions, should be disclosed. However, if the document can be separated into portions that qualify as one or the other, then any portion that can be considered exempt under Section 610.021, subsections 3 and 13 pertinent herein, and not part of the criminal investigation, may be withheld under Section 610.024.
Turning to the circumstances here, because our review requires us to take a fresh look at both elements of summary judgment, we first evaluate whether there is a genuine dispute regarding a material fact. See ITT Commercial Fin. Corp., 854 S.W.2d at 376. Such a dispute "exists where the record contains competent materials that evidence two plausible, but contradictory, accounts of the essential facts." Id. at 382. Here, the parties both assert that there is no dispute over material facts, because it is undisputed that Laut made a complaint, that Chief Shockey ordered an Internal Affairs investigation, and that the investigation is inactive. We disagree that these undisputed facts leave no disputed material fact.
Specifically, the parties disagree about what is contained in the Internal Affairs report following the investigation. The City asserts that the only Internal Affairs inquiry concerned the employees' fitness to perform their job duties; there was no criminal investigation. Thus, according to
Appellants disagree, pointing out that the Internal Affairs investigation took place in response to a complaint of criminal activity, because the unauthorized access of a law enforcement computer system is a federal crime under Title 18 U.S.C. Section 1030(a)(2), (4) (2012).
Our review of the record reveals competent evidence that supports two differing yet plausible views as to the content of the Internal Affairs report, which is material to the determination of whether it should be disclosed. This is primarily based on the affidavit of Chief Shockey, where he attests, "I received a complaint from [Laut], ... [about] two City employees, [Darnell] and [Rodgers], regarding their access to REJIS." He continues, "After receiving the complaint, I ordered that an Internal Affairs Investigation be commenced for the purpose of determining their fitness to perform their job duties."
It is reasonable to infer from Chief Shockey's statements that upon receiving Laut's complaint of improper access to REJIS, Chief Shockey ordered an investigation into the alleged criminal conduct. See Guyer, 38 S.W.3d at 415 (court can presume upon remand investigation concerned criminal conduct if such conduct alleged in complaint). Moreover, Chief Shockey's affidavit makes no mention of any inquiry into personal relationships affecting job performance, but rather he ordered the investigation in response to the allegation of improper access to REJIS. It is reasonable to infer that Chief Shockey's determination of the employees' fitness to perform their job duties was based, at least in part, on an evaluation of whether they had abused their access to REJIS. If true, that investigation into alleged criminal conduct would classify the resulting Internal Affairs report as an investigative report, an open record subject only to the specific types of redactions, above. See Section 610.100.3, 610.024.
However, Chief Shockey's affidavit also states that he ordered an internal inquiry regarding job performance. Even though the Internal Affairs investigation came about after Laut's complaint alleging criminal conduct, it is possible the Internal Affairs report evaluated job performance independently of any investigation into alleged criminal conduct. If true, the report would be more appropriately classified as a personnel record. With no other law requiring disclosure of such a public record, the City would be permitted to withhold it under Section 610.021.3 and 13.
Thus, from the record, there is a genuine dispute concerning whether the Internal Affairs report is directed to alleged criminal conduct and therefore constitutes an investigative report. See Guyer, 38 S.W.3d at 415. As the subject of the
Neither party believes remand is necessary despite their notable disagreement over the nature of the Internal Affairs report. Both parties rely on burdens and presumptions to argue that summary judgment is nevertheless appropriate given the circumstances. We disagree.
First, the City argues that Appellants had the burden to establish that the Internal Affairs investigation was related to criminal conduct by requesting an in camera review under Section 610.100.5 (a means of accessing investigative reports that are "otherwise closed"; allowing in camera review by the trial court).
Additionally, the City distinguishes Guyer because there, the officer who was the subject of the investigation was the requesting party; whereas here, Appellants are third parties. See Guyer, 38 S.W.3d at 413. However, the statute contains no limitation regarding who may request investigative reports that are open under the Sunshine Law.
Likewise, Appellants argue that we should enter summary judgment in their favor. Appellants rely on the Missouri Supreme Court's presumption in Guyer that if the citizen complaint implicated the officer in criminal conduct, the resulting report concerned that criminal conduct, and thus the resulting report should be disclosed. 38 S.W.3d at 415. However, the dispute here is slightly different than in Guyer. In Guyer, the parties did not appear to dispute that the investigation concerned the specific subject of the citizen complaint. Rather, the parties disagreed as to whether the complaint itself alleged any criminal conduct. Here, the parties agree that Laut's complaint alleged improper REJIS access, but dispute whether the subsequent Internal Affairs investigation related to that complaint. Because, unlike Guyer, the record here supports the existence of a factual dispute regarding the substance of the Internal Affairs report, the Guyer presumption does not operate to mandate disclosure as a matter of law.
Thus, we remand for the trial court to resolve this factual dispute by examining the Internal Affairs report in camera. Rather than mandated by a particular section of the Sunshine Law here, in camera review is a practical remedy that would resolve any factual dispute, while at the same time maintaining confidentiality of documents that may be exempt from disclosure under the Sunshine Law. See Chasnoff v. Bd. of Police Comm'rs, 334 S.W.3d 147, 150 (Mo.App. E.D.2011) (noting trial court reviewed investigative file log of 59 documents in camera to determine disclosure under Sunshine Law); Bill, 935 S.W.2d at 663 (noting trial court granted in camera review of retirement benefit records of government employees; subsequently finding records exempt from disclosure under Sunshine Law); accord State ex rel. Lester E. Cox Med. Ctr. v. Keet, 678 S.W.2d 813, 815 (Mo. banc 1984) (in discovery context, trial court has discretion to examine privileged documents in camera to determine whether redaction and production of documents is appropriate); State ex rel. Fusselman v. Belt. 893 S.W.2d 898, 901 (Mo.App. W.D.1995) (holding trial court should have reviewed records requested by criminal defendant in camera to determine whether they contained exculpatory evidence while protecting against unnecessary publication of privileged information).
In light of the Sunshine Law and the Missouri Supreme Court's interpretation of Sections 610.100 and 610.021 in Guyer, if the Internal Affairs report qualifies equally as an "investigative report" under the statutory definition and as a disciplinary or personnel record, and it contains any of the information requested by Appellants, then it must be disclosed. See Guyer, 38 S.W.3d at 414 (where records fit equally under exemption and statute requiring disclosure, express public policy requires disclosure). As discussed above,
Finally, Appellants argue the trial court erred in denying their request for civil penalties, costs, and attorney's fees. These remedies are available in the event the trial court finds a violation of the Sunshine Law. See Section 610.100.5 (investigative reports) and 610.027 (other public records). Because at this point we cannot determine as a matter of law whether any violation occurred, the trial court must reconsider this issue upon remand. We deny Appellants' motion for attorney's fees on appeal for the same reason.
The exemptions to disclosure of documents under Section 610.021.3 and 13 of the Sunshine Law may only be applied after determining whether disclosure of documents is otherwise required by law. Based on the record here, the evidence was not sufficient for the trial court to determine whether the Sunshine Law's exemptions could apply to all of the documents responsive to Appellants' requests. Moreover, a genuine issue of material fact exists regarding whether the Internal Affairs report qualifies as an investigative report or a personnel record. For these reasons, we vacate the summary judgment of the trial court as it relates to the documents responsive to Appellants' request; but specifically exclude any public records, besides investigative reports, containing only the reasons for discipline of the City employees, as that type of exempt document is not otherwise required to be disclosed by law. We remand with instructions for the trial court to examine the remaining responsive documents in camera, and to determine which documents or portions of documents, if any, must be disclosed under the Sunshine Law in accordance with this opinion.
AFFIRMED IN PART; REVERSED AND REMANDED IN PART.
LISA S. VAN AMBURG, P.J., concurs.
PATRICIA L. COHEN, J., concurs.
