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Farber v. Metropolitan Police Department of City of St. Louis

Court of Appeals of Missouri, Eastern District, Fifth Division

June 26, 2018


          Appeal from the Circuit Court of City of St. Louis 16BB-CC00037 Honorable Robert H. Dierker, Jr.



         This 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 Farber's complaint.

         On November 3, 2015, Farber made a formal Sunshine Law[1] 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 he requested.

         The 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 records.

         On 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.

         Standard of Review

         This 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.


         The 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).

         A "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).

         Subsection 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...”

         However, 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.

         Here, 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 ...

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