Stеven Guyer appeals from a judgment of the Circuit Court denying his petition for a declaratory judgment in which he sought disclosure of an internal police investigation report from the City of Kirk-wood. The Circuit Court, applying the Sunshine Law, chapter 610, RSMo, held that the record is exempt from mandatory disclosure. After opinion by the Court of Appeals, Eastern District, this Court granted transfer. Mo. Const, art. V, sec. 10. Reversed and remanded.
Appellant is employed as a commissioned police officer by the City. In December 1997, the City received a citizen complaint alleging that appellant had engaged in misconduct. The Bureau of Internal Affairs of St. Louis County Police Department (Bureau) assisted the City in investigating the complaint and, ultimаtely, concluded that the complaint was unfounded. After the investigation was completed, the Bureau furnished a report of the investigation to the City. Appellant twice requestеd a copy of the report from the City, as well as the identity of the complainant and the specifics of the complaint, but, the City denied the requests based upon its interpretаtion of the Sunshine Law.
When reviewing a declaratory judgment, an appellate court’s standard of review is the same as in any other court-tried case.
McDermott v. Carnahan,
Appellant argues that, under section 610.100.2, RSMo Supp.1995, the City is under a duty to disclose the complaint and report because they were prepared in connection with an investigation into a crime or suspected crime and the investigation is now inactive. The City argues, consistent with the trial court’s holding, that it need not disclose the records because, under section 610.021, RSMo Supp.1995, the complaint and report were related to the “[hjiring, firing, or disciplining ... of a particular employee,” that they constituted “idеntifiable personnel records,” and that they were maintained for the sole purpose of assessing appellant’s fitness to perform' his duties as a police officer.
Section 610.100.2 states in pertinent part:
Eаch law enforcement agency of this state, of any county, and of any municipality, shall maintain records of all incidents reported to the agency, investigations and arrests made by such law enforcement agency. All incident reports and arrest reports shall be open records. Notwithstanding any other provision of law other than the provisions of subsections 4, 5 and 6 of this section or section 320.083, RSMo, investigative reports of all law enforcement agencies are closed records until the investigation becomes inactive....
In contrast, section 610.021 provides in pertinent part:
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:
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(3) Hiring, firing, disciplining or promoting of particular employees by a public governmental body when personal information about the employee is discussed or recorded.... As used in this subdivision, the term “personal information” means information relating to the performance or merit of individual employees;
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(13) Individually identifiable personnel rеcords, performance ratings or records pertaining to employees or applicants for employment....
At first glance, the records in this case appear to qualify both as incident and investigative reports under section 610.100, which are open records, and as “personnel records,” or records containing “information relating to the рerformance or merit of individual employees” under section 610.021, which are records that may be closed. However, the permissive closure available in section 610.021 is qualifiеd by its own terms, that is, records may not be closed under that section “to the extent disclosure is otherwise required by law.” Where, as here, a specific statute requires disclosure of а specific type of public record, section 610.021 may not be relied on to maintain closure, although it would otherwise apply.
Furthermore, in cases like this, where more than оne provision of chapter 610 applies to a record, the decision to open or close the record must be informed by the express public policy stated in section 610.011.1, which is that all records of public governmental bodies are presumed to be open records and that the exceptions in sections 610.010 to 610.028, including those in section 610.021, are to be strictly construed to promote that policy. In effect, section 610.011.1 should be used as a tiebreaker in favor of disclosure when records fit equally well under two specific but opposite provisions of the Sunshine Law.
The City’s reliance on
Wolfskill v. Henderson,
Although this Court holds that section 610.100.2 overrides section 610.021, application of that holding to the facts of this case is problemаtic. Appellant maintains that the records at issue include both an incident report and an investigative re
Unfortunately, the record on appeal does not establish whether the citizen complaint at issue involved any accusation of criminal conduct. Appellant allegеd he was informed by the City that he had been accused of criminal conduct; the City, however, characterizes the complaint as touching only upon appellant’s fitness to рerform his duties as a police officer. At oral argument, appellant argued that the City, in its answer to his petition, made a judicial admission that the citizen complaint accused him of criminal conduct. But, taken as a whole, the City’s pleading, at worst, is merely inconsistent and ambiguous; there is no clear and unqualified admission, as is required for a party’s assertion tо constitute a judicial admission.
See Chilton v. Gorden,
The judgment is reversed, and the case is remanded for proceedings consistent with this opinion.