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Harper v. Missouri State Highway Patrol

Court of Appeals of Missouri, Western District, Special Division

November 5, 2019

KIMBERLY HARPER AND SHARON KAY HARPER, Appellants,
v.
MISSOURI STATE HIGHWAY PATROL, ET AL., Respondents.

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

          Before: Thomas H. Newton, Presiding Judge, Alok Ahuja and Thomas N. Chapman, Judges.

          Thomas H. Newton, Presiding Judge.

         Summary

         Ms. Kimberly Harper and Ms. Sharon Kay Harper (Harpers), Appellants, seek an injunction under the Missouri Sunshine Law (Sunshine Law) section 610.010[1] against the Missouri State Highway Patrol (MSHP), after it refused to disclose information relating to the shooting of now deceased Cpl. Bob Harper. The circuit court determined that the records are protected from disclosure under the Freedom of Information Act (FOIA), by way of 5 U.S.C. §§ 552(b)(7)(A) and 552(c)(1). Appellants challenge as error the circuit court's declaration and application of the federal law and not state law. We reverse.

         Kimberly and Sharon Kay Harper are the daughter and widow, respectively, of a former MSHP Patrolman, Cpl. Harper. MSHP is a public governmental body subject to the requirements of the Sunshine Law. Corporal Harper was shot at his home in 1994, and, both the MSHP and the Federal Bureau of Investigation (FBI) opened separate investigations into the shooting. The FBI policy in 1994 permitted attaching a copy of the FBI report to the narratives of state agencies; in 2001, however, a policy change limited the state agency to only reference the FBI report number in its own narrative. The MSHP investigators with FBI clearance to review FBI reports would write a narrative report referring to the FBI report information. In 1996, the MSHP created lead report #151, a narrative of an FBI interview, with the attached FBI report.

Q. Okay. The next exhibit I've marked is 16. It's Lead Report 151, plus it looks like some attachments that are all redacted.
A. This is one of the FBI reports I was talking about that we get the report, we refer to the report. This is how we referred to the FBI report and then the FBI report that was in this file was redacted.
Q. Okay. And I'm sorry if I'm asking questions you feel like you've already answered.
A. Yeah.
Q. So these full redacted pages, this is a report -- this is pages that the FBI-
A. This is an FBI report.
Q. Okay.
A. Right.
Q. But is it retained by the Missouri State Highway Patrol if it's in the FBI report?
A. This FBI report -- a copy of this FBI report was with this narrative.
Q. Okay. And it was used by your investigative team during this investigation?
A. They may have used it, correct.
Q. But it was in their possession?
A. It was in their -- the copy was in their possession.

         In 2016, the MSHP created lead report #305, a narrative referencing information from a different FBI report, without the FBI report attached.

Q. Yes. We have a copy of Lead 305.
MR. RESCHLY: But not the attachments.
MS. WILCOX: Right.
BY MS. WILCOX:
Q. But it looks like the attachments that would have been the FBI's report that it references -
A. Right. This -- this -- this report refers to a lead that we received reference the Harper investigation. That lead was forwarded to the FBI office in Raleigh, North Carolina, and they followed up on it. Then they wrote a report. It is the ...

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