Court of Appeals of Missouri, Eastern District, Fifth Division
from the Circuit Court of City of St. Louis 16BB-CC00037
Honorable Robert H. Dierker, Jr.
M. DOWD, CHIEF JUDGE
Sunshine Law case arose out of a March 18, 2013 citizen
complaint filed by Curtis Farber against the Metropolitan
Police Department of the City of St. Louis (Police
Department). Farber's complaint accused several police
officers of criminal misconduct-specifically, that they
assaulted and threatened to falsify evidence against
him-during his arrest on July 9, 2011 for offenses he later
pleaded guilty to and for which he received probation. The
Internal Affairs Division of the Police Department (IAD)
completed its internal investigation of Farber's
complaint in September 2013 and notified him in February 2015
of the IAD's finding that his complaint was "not
sustained," meaning it was neither proved nor disproved.
The Police Department took no further action with respect to
November 3, 2015, Farber made a formal Sunshine
request that the Police Department release to him an
un-redacted copy of the IAD report relating to his complaint.
At that time, Farber possessed copies only of his initial
complaint and the employee misconduct report (EMR) relating
to his allegations. The IAD report was not issued to Farber
so he sent another request in March 2016. The Police
Department denied Farber's request in April 2016
notifying him that the IAD report was a "closed"
record. Farber then filed this lawsuit seeking the disclosure
of all records from the IAD investigation. On June 10, 2016,
the Police Department provided Farber with another copy of
the EMR but did not provide him with any of the other records
case proceeded to a bench trial in February 2017. Though the
court entered its original judgment in April 2017, the
court's July 19, 2017 amended judgment is the subject of
this appeal. The court found that pursuant to sections
610.021(3) and (13) the following records from the IAD
investigation were properly closed because they were either
personnel records or were prepared exclusively for the
purpose of determining whether to internally discipline the
police officers named in Farber's complaint: (1)
correspondence directed to Farber notifying him of the
results of the IAD investigation; (2) the administrative
reports transmittal sheet ("ARTS report")
documenting the investigation; (3) an inventory list; (4) an
investigative information sheet; (5) inquiries to and
statements from the accused officers; (6) inter-office
memoranda regarding the IAD investigation; and (7) personal
information of the victim of the offense with which Farber
had been charged. As for the remaining records Farber
requested but did not receive-which included photographs he
submitted of his injuries, supplemental reports reflecting
activity after Farber's arrest, including the
presentation of charges to the Circuit Attorney, and several
other arrest records-the court found that these were open and
must be disclosed, and that the Police Department knowingly
violated the Sunshine Law in refusing to disclose the
appeal, Farber contends that the trial court erred because in
his view none of the IAD investigation records should have
been closed under the Sunshine Law. Specifically, he disputes
the court's determination that the IAD's
investigation into his complaint alleging criminal conduct
against the police officers did not generate an
"investigative report" as defined by §
610.100.1(5), which is an open record under the Sunshine Law
and must be disclosed. We disagree and affirm.
was a bench-tried declaratory judgment case. The standard of
review in a declaratory judgment case is the same as in any
other bench-tried case. State ex rel. Daly v. Info. Tech.
Servs. Agency, 417 S.W.3d 804, 807 (Mo.App.E.D. 2013)
(citing Guyerv. Cityof Kirkwood, 38 S.W.3d 412, 413
(Mo.banc 2001)). In such cases, we affirm the judgment unless
it incorrectly declares or applies the law, is not supported
by substantial evidence, or is against the weight of the
evidence. Matter o/A.L.R., 511 S.W.3d 408, 411-12
(Mo.banc 2017) (citing Murphy v. Canon, 536 S.W.2d
30, 32 (Mo.banc 1976)). The interpretation of a statute,
however, is a question of law that we determine de novo.
Id. at 412.
Sunshine Law establishes Missouri's public policy that
meetings and records of public governmental bodies are open
to the public unless otherwise provided by law. §
610.011.1. Chapter 610 embodies Missouri's commitment to
open government and is to be construed liberally in favor of
open government. State ex rel. Mo. Local Gov 't Ret.
Sys. v. Bill, 935 S.W.2d 659, 664 (Mo.App.W.D. 1996).
"public record" is "any record, whether
written or electronically stored, retained by or of any
public governmental body," § 610.010(6). Public
records are presumed open to public inspection. §
610.011.2; TV. Kansas City Hosp. Bd. of Trustees v. St.
Luke's Northland Hosp., 9$4 S.W.2d 113, 119
(Mo.App.W.D. 1998). This presumption of openness is subject
to permissive exemptions listed in § 610.021.
Chasnoffv. Mofova, 466 S.W.3d 571, 577 (Mo.App.E.D.
2015). Section 610.021 is permissive in that it describes
records that may be closed. Id., (citing
Guyer, 38 S.W.3dat414).
3 of § 610.021 authorizes closing records relating to
the "[h]iring, firing, disciplining or promoting of
particular employees by a public governmental body when
personal information"-that "relating to the
performance or merit of individual employees"-"is
discussed or recorded." And subsection 13 authorizes the
closure of "[i]ndividually identifiable personnel
records, performance ratings or records pertaining to
employees or applicants for employment...”
where a record fits equally under a permissive exemption and
a provision requiring disclosure, the record should be
disclosed. Lout v. City of Arnold, 417 S.W.3d 315,
323 (Mo.App.E.D. 2013) (citing Guyer, 38 S.W.3d at
414). And when a governmental body claims that an exception
to the general rule of openness applies, the burden of
persuasion in a suit seeking disclosure of public records
shifts to the governmental body. § 610.027.2.
the trial court found that under sections 610.021(3) and (13)
the Police Department could close certain records Farber
requested. Farber argues that the Police Department failed to
carry its burden to show that it is permitted to close any of
the records found by the trial court to be subject to
permissive closure because each of those records constitutes
part of an investigative report under § 610.100.1 (5)
and thus is an open record under §610.100.2(2). We
disagree because we find that the trial court correctly
determined that none of these records was part of an