Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Wyrick v. Henry

Court of Appeals of Missouri, Western District, First Division

November 12, 2019

PAULA WYRICK, Respondent,
v.
TERESA HENRY, Appellant.

          Appeal from the Circuit Court of Jackson County, Missouri The Honorable S. Margene Burnett, Judge

          Before: Edward R. Ardini, Jr., Presiding Judge, Mark D. Pfeiffer, Judge and Cynthia L. Martin, Judge

          OPINION

          Cynthia L. Martin, Judge

         Teresa Henry ("Henry"), in her official capacity as the city clerk for the City of Raytown, Missouri, appeals from several trial court orders and judgments addressing her failure to disclose records pursuant to the Sunshine Law, section 610.010 et seq.[1]("Sunshine Law"), and imposing a civil penalty and awarding attorneys' fees to Paula Wyrick ("Wyrick"). Finding no error, we affirm, and remand for consideration of Wyrick's motion for an additional award of attorneys' fees.

         Factual and Procedural Background

         Wyrick's mother, Cecile Leggio ("Leggio"), died shortly after sustaining injuries in a motor vehicle accident on December 31, 2016. The accident occurred at the intersection of Ralston Avenue and 67th Street in Raytown, Missouri. On January 13, 2017, The Gorny Law Firm sent a notice of claim to the City of Raytown on behalf of the Leggio family pursuant to section 82.210.[2]

         On July 14, 2017, The Gorny Law Firm sent a request for records under the Sunshine Law to the City of Raytown's city clerk's office. The request was for the following records:

• All records pertaining to complaints about the safety of, or accidents occurring at or around, Ralston Avenue and 67th Street
• All records pertaining to the design of the intersection of Ralston Avenue and 67th Street
• All records pertaining to the traffic or other diagnostic studies conducted at the intersection of Ralston Avenue and 67th Street

         On July 19, 2017, Henry sent a letter stating that the request for records under the Sunshine Law was denied pursuant to section 610.021.1. Henry's letter quoted from the referenced statute as follows:

"Except to the extent disclosure is otherwise required by law, a public governmental body is authorized to close meetings, records and votes, to the extent they relate to the following:
(1) Legal actions, causes of action or litigation involving a public governmental body and any confidential or privileged communications between a public governmental body or its representatives and its attorneys. []."

         On August 11, 2017, The Gorny Law Firm sent a second request for records under the Sunshine Law to the City of Raytown, directed to the public works department. The request was for the following records:

• All records pertaining to complaints about the safety or [sic], or accidents occurring at or around, Ralston Avenue and 67th Street
• All records pertaining to traffic or other diagnostic studies conducted at the intersection of Ralston Avenue and 67th Street

On August 21, 2017, Henry sent an email stating that, as had been the case in her July 19, 2017 letter, the request for records under the Sunshine Law was denied pursuant to section 610.021.1. Henry's email quoted the same language from the statute set forth in Henry's July 19, 2017 letter.

         On August 28, 2017, The Gorny Law Firm emailed the attorney representing the City of Raytown and urged that the requested records were not exempt from disclosure merely because a client of the law firm might file a lawsuit. The email notified the City of Raytown that if it became necessary to file a Sunshine Law lawsuit, attorneys' fees would be sought.

         No records were disclosed by the City of Raytown. On October 9, 2017, Wyrick field a petition against Henry in her official capacity. The petition sought a declaration that Henry purposefully violated the Sunshine Law; an injunction requiring disclosure of the requested records; the assessment of a civil penalty in the amount of $5, 000; and an award of attorneys' fees and costs.

         Following discovery, Wyrick filed a motion for summary judgment ("Motion") which argued that she was entitled to all of the relief sought in her petition as a matter of law. Henry opposed the Motion. In her response to the Motion, Henry admitted certain of Wyrick's statements of uncontroverted facts including:

• That Henry is aware and has knowledge that the City of Raytown is a government entity subject to the Sunshine Law
• That in the absence of a notice of claim having been filed pursuant to section 82.210, Henry would normally produce copies of complaints about the intersection of Ralston Avenue and 67th Street in response to a Sunshine Law request
• That Henry does not know whether records pertaining to the design of the intersection of Ralston Avenue and 67th Street exist
• That Henry is "sure there are" road design or intersection design documents for intersections and roads maintained by the City of Raytown
• That in the absence of a notice of claim having been filed pursuant to section 82.210, Henry would normally provide records pertaining to traffic or other diagnostic studies conducted at the intersection of Ralston Avenue and 67th Street in response to a Sunshine Law request
• That the City of Raytown maintains traffic or other diagnostic studies conducted at the intersection of Ralston Avenue and 67th Street
• That Henry is aware and has knowledge that incident reports are open records subject to production under the Sunshine Law
• That Henry did not search for records responsive to either the July 17, 2017 Sunshine Law request or the August 11, 2017 Sunshine Law request

         Henry also admitted in response to Requests for Admissions propounded by Wyrick that at the time of Wyrick's Sunshine Law requests, the City of Raytown had records pertaining to the design of the intersection of Ralston Avenue and 67th Street, and pertaining to traffic or other diagnostic studies conducted at the intersection of Ralston Avenue and 68th Street. Henry also admitted that in response to Wyrick's Sunshine Law requests, she had not searched for records pertaining to complaints about the safety of, or accidents occurring at or around, Ralston Avenue and 67th Street; the design of the intersection of Ralston Avenue and 67th Street; or traffic or other diagnostic studies conducted at the intersection of Ralston Avenue and 67th Street.

         Following full briefing on the Motion, the trial court granted partial summary judgment in favor of Wyrick on July 10, 2018 ("Partial Summary Judgment"). The Partial Summary Judgment found that Wyrick's Sunshine Law requests fell into three categories:

1) records pertaining to the design of the intersection at Ralston and 67th Street; 2) records pertaining to the traffic or other diagnostic studies conducted at the intersection of Ralston and 67th Street; and 3) records pertaining to complaints about the safety of, or accidents occurring at or around, Ralston and 67th Street.

         The trial court found that "[i]t is undisputed that these records fall within the definition of 'public record' as set forth in R.S.Mo. [section] 610.010(6)." The trial court further found that Henry had refused to search for or provide any of the requested records because she alleged they fell within the exception for litigation found at section 610.021(1). The trial court found that whether a requested record is closed under the litigation exception depends on the nature of the record itself. Based on that determination, the trial court concluded that the only records which might fall within the limited litigation exception were records in the third request category (pertaining to complaints about the safety of, or accidents occurring at or around, Ralston and 67th Street).

         As such, the Partial Summary Judgment granted summary judgment in favor of Wyrick with respect to records in the first and second request categories (pertaining to design, and to traffic or other diagnostic studies), and ordered Henry to disclose those records. The Partial Summary Judgment denied summary judgment with respect to records in the third request category (pertaining to complaints about safety or other accidents), but ordered Henry to produce those records for in camera inspection, subject to further order of the court regarding disclosure. Finally, the Partial Summary Judgment declined to enter summary judgment for Wyrick for civil penalties "at this time," and indicated that the trial court would address Wyrick's request for an assessment and award of civil penalties, costs, and attorneys' fees at the conclusion of the action.

         On July 16, 2018, following in camera inspection of records within the third request category (pertaining to complaints about safety or other accidents), the trial court entered an order enumerating documents that were not subject to the litigation exception. The trial court ordered Henry to disclose the enumerated documents. The order found that other documents and photographs that had been produced for in camera inspection were directly "related to the accident involving [Leggio] and are subject to the [litigation] exception." The order directed the parties to schedule a final hearing on all unresolved matters.

         After a hearing on November 19, 2018, the trial court entered a judgment/order finding that Henry's failure to disclose records in response to Wyrick's Sunshine Law requests rose to the level of knowing and purposeful violations of the Sunshine Law because, during her hearing testimony, "[Henry] indicated she has implemented a policy to refuse the production of any requested documents to any citizen if that citizen has filed a notice of claim against the City of Raytown, regardless of the nature of the document requested." The trial court gave the parties until November 30, 2018, to brief the amount of attorneys' fees and penalties that should be assessed.

         On February 7, 2019, the trial court entered a judgment imposing a $4, 000 penalty on the City of Raytown for Henry's knowing and purposeful violations of the Sunshine Law, finding that "the evidence clearly establishes four separate and distinct violations," and "it is appropriate that a penalty be assessed with regard to each such violation." The trial court also ordered the City of Raytown to pay The Gorny Law Firm $38, 550 in attorney fees.

         Henry filed this timely appeal from the trial court's collective orders and judgments.[3]

         Analysis

         Henry asserts four points on appeal. First, she alleges it was error to grant Partial Summary Judgment in favor of Wyrick because all of the documents ordered disclosed "have a clear nexus to Wyrick's threatened litigation regarding [Leggio's] death," and thus should be closed under section 610.021(1). [Appellant's Brief, p. 12] In her second and third points, Henry alleges that the finding that Henry knowingly and purposefully violated the Sunshine Law is not supported by substantial evidence (point two) or the weight of the evidence (point three) because Henry relied on counsel's "colorable but faulty reading of the law." [Appellant's Brief, pp. 22, 30] In her fourth point, Henry alleges that the trial court erred in awarding attorneys' fees and a civil penalty because the attorneys' fee request was unreasonable, and because the civil penalty was not supported by substantial evidence and was excessive.

         The Records Requested by Wyrick and Ordered Disclosed by the Trial Court Were Not Exempt from Disclosure Under the Sunshine Law (Point One)

         Henry argues that all of the records she was ordered to disclose to Wyrick were exempt from disclosure under the Sunshine Law pursuant to the litigation exception set forth at section 610.021(1). We disagree.

         The Sunshine Law directs "that meetings, records, votes, actions, and deliberations of public governmental bodies be open to the public unless otherwise provided by law." Section 610.011.1. Thus, "[e]xcept as otherwise provided by law, . . . all public records of public governmental bodies shall be open to the public for inspection and copying as set forth in sections 610.023 to 610.026 . . . ." Section 610.011.2. Section 610.022.5 provides that "[p]ublic records shall be presumed to be open unless otherwise exempt pursuant to the provisions of this chapter." Section 610.011.1 underscores the legislature's intent to foster open and transparent operations by public governmental bodies by directing that the Sunshine Law "shall be liberally construed and [its] exceptions strictly construed to promote this public policy."

         It is undisputed that the City of Raytown is a "public governmental body" as defined by section 610.010(4).[4] And it is undisputed that the records requested by Wyrick's Sunshine Law requests are "public records" as defined by section 610.010(6).[5] The narrow issue presented by Henry's first point on appeal is whether the public records requested by Wyrick and ordered disclosed by the trial court are exempt from Sunshine Law disclosure by a statutory exception, specifically section 610.021(1).

         Section 610.021(1) provides, in relevant part, as follows:

Except to the extent disclosure is otherwise required by law, a public governmental body is authorized to close meetings, records and votes, to the extent they relate to the following:
(1) Legal actions, causes of action or litigation involving a public governmental body and any confidential or privileged communications between a public governmental body or its representatives and its attorneys. . . .

         Henry took the position in response to Wyrick's Sunshine Law requests that all of the records requested by Wyrick fell within this statutory exception. Henry argued that all public records in the City's possession were exempt from disclosure to Wyrick because the records became "related to" threatened litigation when the City of Raytown received Wyrick's notice of claim. Henry admitted in proceedings before the trial court that if anyone other than Wyrick or her attorneys had requested the same records, the records would not be subject to the exception described in section 610.021(1). Henry thus argued that application of section 610.021(1) depends on the identity of the person making a Sunshine Law request, and not on the nature of the record itself. The trial court disagreed and concluded that application of section 610.021(1) depends on the nature of the record itself, and not on the person making the Sunshine Law request.[6]

         No Missouri case has addressed this precise issue. We therefore review the issue as one of first impression.

         When interpreting a statute, our primary objective is to determine legislative intent based on the plain language of the statute. Sun Aviation, Inc. v. L-3 Commc'ns Avionics Sys., Inc., 533 S.W.3d 720, 723 (Mo. banc 2017). Section 610.021(1) provides that "records" must be disclosed by a public governmental entity unless "they relate to" a legal action, cause of action, or litigation. The plain language of section 610.021(1) is unambiguous, and places the focus on the nature of the records themselves, without regard or reference to the person making the Sunshine Law request.

         Henry relies on Tuft v. City of St. Louis, 936 S.W.2d 113 (Mo. App. E.D. 1997), to argue a contrary position. Henry claims that Tuft endorsed closing any public record that relates to potential litigation, and thus authorized closing records to any person who has threatened litigation. Henry's reading of Tuft is strained and unsupportable. Tuft did not address whether or how the identity a Sunshine Law requestor influences application of the litigation exception described in section 610.021(1). In fact, the person requesting records in Tuft was a reporter, and not a person who had threatened litigation against the public governmental entity. Id. at 115.

         Contrary to Henry's heavy reliance, Tuft addressed two narrow issues, neither of which are applicable to the issues presented on appeal. First, in response to the requesting reporter's argument that a settlement agreement between the city and an employee had to be disclosed because section 610.021(1) only applied to pending, and not potential litigation, the Eastern District concluded that the phrase "[l]egal action, causes of action or litigation" includes within its scope "potential litigation." Id. at 117. Here, the trial court did not order the disclosure of records because it failed to appreciate that section 610.021(1) applies to potential litigation. Instead, the trial court ordered the disclosure of records because it found the inherent nature of the requested records did not "relate to" potential litigation.

         Second, the requesting reporter in Tuft argued that even if section 610.021(1) applies to potential litigation, the settlement agreement fell within an exception to the "related to" litigation exception. When Tuft was decided, section 610.021(1) provided that:

However, any minutes or vote relating to litigation involving a public governmental body shall be made public upon final disposition of the matter voted upon; . . .

         Section 610.021(1), RSMo 1994. The reporter in Tuft argued that the requirement to disclose "any minutes or vote" encompassed settlement agreements approved or authorized by minutes or votes. Tuft, 936 S.W.2d at 118. The Eastern District disagreed, and found that "[t]he terms 'vote' and 'minutes' are not ambiguous and [that] the settlement agreement is neither a vote nor minutes."[7] Id. at 119. This holding is of no import to Henry.

         In short, Tuft cannot be read to stand for the proposition that public records can be closed to a person who has threatened litigation. Instead, Tuft underscores that the inherent nature of a record controls whether it is "related to" pending or potential litigation, and thus permissibly closed to all who might request the record. Indeed, Tuft cautioned public governmental bodies against broad reliance on section 610.021(1)'s exception for records "related to" litigation:

[T]aken to extremes, virtually any controversial matter could be the subject of potential litigation and thus cited as a basis for closing virtually any record. Such an open ended application of the litigation exception would indeed be inconsistent with the requirement that exceptions to the Act be strictly construed. Where the justification offered is potential . . . litigation, the governmental entity should properly bear a heavy burden of demonstrating both a substantial likelihood that litigation may occur and a clear nexus between the document sought and the anticipated litigation.

Tuft, 936 S.W.2d at 118 (emphasis added). Tuft recognized that section 610.021(1) focuses on the inherent nature of the record itself by requiring a "clear nexus" between the record sought and actual or threatened litigation. A record's inherent nature is a constant, divorced from the identity of the person requesting the record, and from whether a public governmental body has been placed on notice of possible litigation.

         On appeal, Henry now argues that the records requested by Wyrick were "related to" litigation, and thus possessed the "clear nexus" to litigation Tuft requires, because all of the records were relevant to establish one or more of the essential elements of the "dangerous condition" exception to sovereign immunity set forth in section 537.600(2). [Appellant's Brief, p. 17] Henry argues that "nexus" means a "connection between things," and the records requested "are the very type of documents admitted as evidence to demonstrate a waiver of sovereign immunity and liability for a dangerous condition on public property." [Appellant's Brief, pp. 18, 21]

         Henry's argument mistakenly conflates what is discoverable or admissible at trial with whether a public governmental body is excused from the mandatory obligation to disclose public records. A record that is not by its inherent nature "related to" litigation does not become so merely because it may be discoverable or admissible in litigation. At its core, Henry's argument is a mere recast of the now discredited argument that section 610.021(1) can be applied to close public records to a requesting party who has threatened litigation. Henry's argument would permit public governmental bodies to rely on the litigation exception "as a basis for closing virtually any record" in a manner that would "be inconsistent with the requirement that exceptions to the [Sunshine Law] be strictly construed." Tuft, 936 S.W.2d at 118.

         We conclude that public records do not have a "clear nexus" to litigation merely because they could be relevant (that is, discoverable or admissible) in litigation threatened by a requesting party. Rather, when the focus is placed on the nature of the record itself as required by section 610.021(1), a "clear nexus" exists only in those narrow instances where the record by its inherent nature "relates to" pending or threatened litigation--a determination that is not influenced by the identity of the person making a Sunshine Law, or by whether the public governmental body has been placed on notice of threatened litigation.

         It is immaterial that the records ordered disclosed by the trial court might be relevant, (that is, discoverable or admissible), in potential litigation between Wyrick and the City of Raytown. The records ordered disclosed by the trial court do not possess, by their inherent nature, a clear nexus to litigation, and thus do not "relate to" litigation as that phrase is used in section 610.021(1).

         Point One is denied.

         The Trial Court's Finding that Henry Knowingly and Purposefully Violated the Sunshine Law Is Supported by Substantial Evidence and by the Weight of the Evidence (Points Two and Three)

         Henry alternatively argues that if she was obligated to disclose public records, it was nonetheless error for the trial court to find in its order dated November 19, 2018, that her Sunshine Law violations were knowing and purposeful. Henry claims this finding is not supported by substantial evidence and is against the weight of the evidence because she relied on the advice of counsel in refusing to disclose documents, and was found by the trial court to have "refus[ed] to produce the documents . . . under a colorable but faulty reading of Tuft and related case law."

         "What constitutes a knowing or purposeful violation of the Sunshine Law is a question of law." Laut v. City of Arnold, 491 S.W.3d 191, 193 (Mo. banc 2016). "Section 610.027 expressly states that a knowing violation occurs when the public entity 'has knowingly violated sections 610.010 to 610.026.'" Id. (quoting section 610.027.3). "To prove a 'knowing' violation, a party, therefore, must do more than show that the city knew that it was not producing the report . . . ." Id. Rather, "section 610.027.2 requires proof that the public entity knew that its failure to produce the report violated the Sunshine Law." Id. (citing section 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 [the Missouri Supreme Court] has defined as acting with 'a conscious design, intent, or plan to violate the law and d[id] so with awareness of the probable consequences.'" Id. (quoting Spradlin v. City of Fulton, 982 S.W.2d 255, 262 (Mo. banc 1998)).

         Although the meaning of the terms "knowing" and "purposeful" is a question of law, "[w]hether the conduct of the city brings it within the scope of the statutory definitions of knowing and purposeful conduct is a question of fact." Id. at 196. "It [is] up to the trial court to weigh the evidence and resolve the factual question whether the city's conduct fell within the definitions of knowing or purposeful violations under section 610.027." Id. at 193. Here, the trial court weighed the evidence and found that Henry's violations of the Sunshine Law were knowing and purposeful because "[Henry] indicated she has implemented a policy to refuse the production of any requested documents to any citizen if that citizen has filed a notice of claim against the City of Raytown, regardless of the nature of the document requested." "Such factual determinations are reviewed by this Court under the standard set out in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976)." Id. at 196. "Under that standard, it was up to the trial court, as fact finder, to determine whether [Henry's] conduct was knowing or purposeful as those terms are used in section 610.027 when [she] declined to release" any records in response to Wyrick's Sunshine Law requests. Id.

         Henry challenges the trial court's finding that her violations of the Sunshine Law were knowing and purposeful, contending the finding is not supported by substantial evidence or the weight of the evidence. "A trial court's judgment is not supported by substantial evidence when 'there is no evidence in the record tending to prove a fact that is necessary to sustain the [trial] court's judgment as a matter of law.'" Id. at 197 (quoting Ivie v. Smith, 439 S.W.3d 189, 200 (Mo. banc 2014)). "'When reviewing whether the [trial] court's judgment is supported by substantial evidence, appellate courts view the evidence in the light most favorable to the [trial] court's judgment and defer to the [trial] court's credibility determinations[, ] . . . no contrary evidence need be considered on a substantial-evidence challenge . . . [and] [trial] courts are free to believe any, all, or none of the evidence presented at trial.'" Id. (quoting Ivie, 439 S.W.3d at 200).

         In contrast, "'[a] claim that the judgment is against the weight of the evidence presupposes that there is sufficient evidence to support the judgment[, ]' and a trial court's 'judgment is against the weight of the evidence only if the [trial] court could not have reasonably found, from the record at trial, the existence of a fact that is necessary to sustain the judgment.'" Id. (quoting Ivie, 439 S.W.3d at 206). "'Appellate courts should exercise the power to set aside a decree or judgment on the ground that it is against the weight of the evidence with caution and with a firm belief that the decree or judgment is wrong.'" Id. (quoting Murphy, 536 S.W.2d at 32).

         Substantial Evidence Supports the Trial Court's Finding

         The trial court based its finding that Henry's violations of the Sunshine Law were knowing and purposeful on the fact that "[Henry] indicated she has implemented a policy to refuse the production of any requested documents to any citizen if that citizen has filed a notice of claim against the City of Raytown, regardless of the nature of the document requested." Henry contends that no substantial evidence supports this finding. She cites to contrary evidence which she claims supports the conclusion that Henry's responses to Sunshine Laws requests varied when notices of claims had been filed, depending upon the advice of counsel.

         Henry's request that we consider evidence that is contrary to the finding she challenges is the antithesis of our standard of review. When faced with a no substantial evidence challenge, no contrary evidence is to be considered. Laut, 491 S.W.3d at 197 (citing Ivie, 439 S.W.3d at 200). Rather, our review is limited to determining whether any evidence in the record supports the trial court's finding. Id.

         Henry was deposed by Wyrick in the proceedings before the trial court, and portions of her deposition testimony were made a part of the record in connection with the summary judgment Motion. During her deposition, Henry testified as follows:

Q: . . . [Y]ou weren't going to -- you weren't going to give them up [referring to the requested records] on your own; right?
A: Correct.
Q: And you said that you're not going to file a declaratory judgment action to determine whether or not they should be produced; correct?
A: Correct.
Q: What other way could someone in my client's situation get those documents?
[By Henry's counsel: If you know, you ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.