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American Civil Liberties Union of Missouri Foundation v. Missouri Department of Corrections

Court of Appeals of Missouri, Western District, Fourth Division

November 22, 2016

AMERICAN CIVIL LIBERTIES UNION OF MISSOURI FOUNDATION, et al., Respondents,
v.
MISSOURI DEPARTMENT OF CORRECTIONS, Appellant.

         Appeal from the Circuit Court of Cole County, Missouri The Honorable Jon E. Beetem, Judge

          Before Mark D. Pfeiffer, Chief Judge, and Karen King Mitchell and Gary D. Witt, Judges

          OPINION

          Mark D. Pfeiffer, Chief Judge

         The Missouri Department of Corrections ("Department") appeals the judgment of the Circuit Court of Cole County, Missouri ("trial court"), in favor of the American Civil Liberties Union of Missouri ("ACLU") which imposed a $500 penalty against the Department and awarded attorney's fees and costs of $5, 145 to the ACLU, pursuant to section 610.027[1] and, specifically, due to the trial court's conclusion that the Department knowingly violated the Missouri Sunshine Law. On appeal, the Department argues that: (1) the trial court erroneously applied a strict liability standard in the imposition of fines, attorney's fees, and costs; and (2) there is no substantial evidence to support the trial court's judgment. We affirm.

         Factual and Procedural Background

         On May 2, 2014, relevant to this appeal, the ACLU requested public records from the Department related to individuals not employed by the Department who had applied to witness executions for a twelve-month period. The representative of the Department designated to respond to all records requests related to executions was the Department's deputy general counsel, Mr. Matt Briesacher ("Briesacher"). Briesacher testified at trial that he had been working on Sunshine Law requests in his role with the Department for five years, and responding to such requests was "a substantial part of [his] duties" during the past two years.

         Briesacher responded to the ACLU's request on May 6, 2014, stating that responsive records would be provided within three weeks. In July 2014, the Department produced heavily redacted records in response to the ACLU's request. The redacted information included witness applicants' responses to questions regarding contact information, place of employment, social security numbers, and criminal history. After the ACLU requested that the Department explain its authority for redacting the witness applications, Briesacher cited to section 610.035[2] as authority for redacting social security numbers from the witness applications and section 610.021(14)[3] as his authority for redacting all other personal information of the applicants, specifically noting a concern for "the applicants' right to privacy."

         On September 2, 2014, the ACLU filed suit against the Department, seeking to compel the Department to disclose the records without redactions (except for social security numbers), and also alleging that the Department's failure to do so from the outset was a "knowing or purposeful violation of the Sunshine Law." A trial was scheduled for July 24, 2015.

         Two days before the trial, over a year after the initial requests and months after many execution witness applicants had consented to producing the information requested by the ACLU, the Department produced additional records, some of which were still heavily redacted and some of which were newly un-redacted.

         The trial court entered judgment in favor of the ACLU. In its judgment, the trial court explained that "[t]he case law is clear that reliance on [section 610.021(14)] requires a statute which protects the information, not some 'penumbral' right [to privacy]." The trial court also noted that the Department's "right to privacy" redaction explanation appeared to the trial court to be nothing more than "an afterthought, " and consequently, the trial court placed no credibility in the Department's attempt to belatedly and purportedly rely upon this basis for redacting information-information that the trial court noted was "[t]he type of information . . . released by the Department of Revenue Driver's License Bureau on a daily basis and is available online from Casenet to the general public." The trial court also found it coincidental that the Department was producing a large quantity of previously redacted records forty-eight hours prior to trial; ultimately concluding: "The [trial court] finds, by a preponderance of the evidence, that the failure of [the Department] to produce the records . . . to be a knowing violation of the Sunshine Law." Accordingly, as part of its judgment, the trial court imposed a fine of $500 plus attorney's fees and costs in the amount of $5, 145.

         This appeal follows. In its appeal, the Department does not appeal the trial court's finding that it violated the Sunshine Law; instead, the Department appeals the trial court's conclusion that the violation was a "knowing" violation of the Sunshine law.

         Standard of Review

What constitutes a knowing or purposeful violation of the Sunshine Law is a question of law. Section 610.027 expressly states that a knowing violation occurs when the public entity "has knowingly violated sections 610.010 to 610.026." § 610.027.3. To prove a "knowing" violation, a party, therefore, must do more than show that the [public entity] knew that it was not producing the report; as this Court noted in Strake v. Robinwood West Cmty. Improvement Dist., 473 S.W.3d 642, 645 (Mo. banc 2015), section 610.027.2 requires proof that the public entity knew that its failure to produce the report violated the Sunshine Law. ยง 610.027.3. The standard required to prove a "purposeful" violation under section 610.027 is greater-the party must show that the defendant "purposefully violated section 610.010 to 610.026", which this Court has defined as acting with "a 'conscious ...

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