Court of Appeals of Missouri, Western District, Special Division
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.
H. Newton, Presiding Judge.
Kimberly Harper and Ms. Sharon Kay Harper (Harpers),
Appellants, seek an injunction under the Missouri Sunshine
Law (Sunshine Law) section 610.010 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.
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
Q. Okay. The next exhibit I've marked is 16. It's
Lead Report 151, plus it looks like some attachments that are
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.
Q. So these full redacted pages, this is a report -- this is
pages that the FBI-
A. This is an FBI report.
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
Q. Okay. And it was used by your investigative team during
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.
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 ...