from the Circuit Court of the City of St. Louis The Honorable
Jason Sengheiser, Judge.
DENVIR STITH, JUDGE.
Louis City Board of Election Commissioners and its members
and officers (collectively, the election board) appeal the
circuit court's judgment that they violated the sunshine
law, section 610.010, et seq.,  in refusing to produce absentee
ballot applications and ballot envelopes to David Roland. Mr.
Roland cross-appeals the circuit court's taxation of
costs against him in regard to the election board's
defense of his assertion that the election board's
violation was purposeful or knowing.
portion of the circuit court's judgment holding the
election board violated the sunshine law because absentee
ballot applications and ballot envelopes are open public
records is affirmed. The circuit court's taxation of
certain court costs against Mr. Roland and in favor of the
election board is reversed because the latter was not
entitled to costs under either the sunshine law or the
general law governing the award of costs.
FACTUAL AND PROCEDURAL BACKGROUND
Roland represented a candidate taking part in the City of St.
Louis' August 2016 primary election. As part of that
representation, Mr. Roland made a sunshine law request to the
custodian of records for the election board for certain
election materials relating to elections held in the City
from 2012 through 2016. The election board complied with much
of Mr. Roland's request, but its in-house attorney
informed Mr. Roland he had advised the election board that
the sunshine law did not permit it to grant the portion of
Mr. Roland's request seeking absentee ballot applications
and ballot envelopes connected to those elections. When Mr.
Roland continued to pursue the matter, the election board
sought a legal opinion from the Missouri Secretary of
State's Office. Its counsel advised that the ballot
applications were confidential pursuant to section 115.289
and the ballot envelopes were confidential pursuant to
section 115.493; accordingly, both types of records were
closed pursuant to section 610.021(14).
Roland sought a declaratory judgment that the election board
violated the sunshine law by refusing to produce the absentee
ballot applications and ballot envelopes. He also alleged the
claimed violation was knowing or purposeful, thereby
entitling him to damages, which could include attorney fees,
costs, and civil penalties, in addition to a declaratory
judgment of his entitlement to the documents.
circuit court first tried the issue of whether the election
board violated the election laws. It ruled in favor of Mr.
Roland, declaring the election board had violated the
sunshine law by withholding the absentee ballot applications
and ballot envelopes. Subsequently, the election board
released those records to Mr. Roland.
circuit court then addressed Mr. Roland's claim of
entitlement to attorney fees, costs and a penalty for this
violation of the sunshine law. It found the election
board's violation had been neither knowing nor purposeful
because it had taken reasonable steps by consulting its
in-house counsel and attorneys for the Secretary of
State's office, and accepting their advice that Mr.
Roland's interpretation of the law was incorrect. The
clerk taxed the election board's costs to Mr. Roland in
defending against the claim its violation was knowing or
appeal, the election board claims the circuit court erred in
finding that it violated the sunshine law because, it argues,
the ballot applications and envelopes are confidential
pursuant to sections 115.289 and 115.299 and, therefore, are
closed records under section 610.021(14). Mr. Roland
cross-appeals the clerk's billing of costs to him, as he
was the prevailing party at trial and the only party to
establish a violation of the sunshine law. After an opinion
by the Missouri Court of Appeals, Western District, this
Court accepted transfer and hears the case as on original
appeal. Mo. Const. art. V, § 10; Rule
STANDARD OF REVIEW
judgment in a court-tried case will be affirmed if there is
substantial evidence to support it, it is not against the
weight of the evidence, and it does not erroneously declare
or apply the law." Gateway Foam Insulators, Inc. v.
Jokerst Paving & Contracting, Inc., 279 S.W.3d 179,
184 (Mo. banc 2009). "An issue of statutory
interpretation is a question of law, not fact." Laut
v. City of Arnold, 491 S.W.3d 191, 196 (Mo. banc 2016).
Accordingly, the meaning and application of sections 115.289
and 115.299 and their interpretation in pari materia
with section 610.021 is a question of law for this Court.
"It is a basic rule of statutory construction that words
should be given their plain and ordinary meaning whenever
possible." Spradlin v. City of Fulton, 982
S.W.2d 255, 258 (Mo. banc 1998). "Courts look elsewhere
for interpretation only when the meaning is ambiguous or
would lead to an illogical result defeating the purpose of
the legislature." Id. "The ultimate guide
in construing an ambiguous statute is the intent of the
intent with respect to public records is clear. The sunshine
law expressly states, "It is the public policy of this
state that meetings, records, votes, actions, and
deliberations of public governmental bodies be open to the
public unless otherwise provided by law." §
610.011.1. A public record is defined as "any
record, whether written or electronically stored, retained by
or of any public governmental body …." §
610.010(6). To promote the policy of open public
records, the sunshine law states its open records provisions
"shall be liberally construed" and "exceptions
strictly construed." § 610.011.1.
ST. LOUIS ABSENTEE BALLOT APPLICATIONS HAVE CEASED BEING
PROTECTED FROM DISCLOSURE BY LAW
sunshine law protects the public's right of access to
public records except, as relevant here, "[r]ecords
which are protected from disclosure by law." §
610.021(14). Both parties agree the absentee ballot
applications Mr. Roland sought are public records and,
therefore, are subject to disclosure unless otherwise
protected by law. Section 115.289.1, which applies in most
Missouri counties, does not otherwise protect ballot
applications from disclosure. Section 115.289.2 does provide
some restrictions as to whom may obtain lists of those filing
absentee ballot applications, stating in relevant part:
[A]ll lists of applications for absentee ballots shall be
kept confidential to the extent that such lists of
applications shall not be posted or displayed in any area
open to the general public, nor shall such lists of
applications be shown to any person who is not entitled to
see such lists of applications … Persons entitled to
see such lists shall include a candidate or a duly authorized
representative of a campaign committee as defined in section