Introduction
Rachel Laut (Laut) and John Soellner (Soellner) (collectively referred to as Appellants) appeal the trial court’s summary judgment in favor of the City of Arnold (City), on Appellants’ petition seeking disclosure of documents under Missouri’s Sunshine Law, Chapter 610, RSMo. (Supp. 2012).
Background
Laut and Soellner each had some form of a personal relationship with one or more employees of the City’s Police Department. Appellants developed a good faith belief that one or more of these employees had improperly accessed Appellants’ confidential records contained in an electronic law enforcement database called the Regional Justice Information System (RE-JIS). In September of 2010, Laut made a complaint to the City regarding two City Police Department employees, dispatcher Linda Darnell (Darnell) and Sergeant Darren Rodgers
On October 11, 2010, Appellants’ counsel sent a letter to the City requesting disclosure of several documents pursuant to Section 610.100 of Missouri’s Sunshine Law, including reports and records regarding investigations and communications about Darnell’s and Rodgers’ use of REJIS, background checks of Appellants, and any subsequent disciplinary action. The letter stated Appellants’ request was for the purpose of investigating civil claims. On October 14, 2010, the City responded by letter, informing Appellants that there was no criminal investigation performed regarding Darnell and Rodgers. The letter also stated that the records responsive to Appellants’ request were exempt from disclosure under Section 610.021.3 of the Sunshine Law.
Standard of Review
Our review of summary judgment is essentially de novo. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp.,
Discussion
Appellants’ sole point on appeal is that the trial court erred as a matter of law in granting summary judgment in favor of the City. Appellants argue the information they sought was not closed information because the underlying conduct was criminal in nature, and the Sunshine Law requires disclosure of records regarding criminal investigations. Appellants also argue the trial court therefore erred in denying their request for costs and attorney’s fees based on the City’s violation of the Sunshine Law. We address each of these arguments in turn.
Sunshine Law
The overarching purpose of the Sunshine Law is one of open government and transparency. Smith v. Sheriff,
Specifically, Appellants requested two types of documents, investigative reports and any other records,
1. Improper use of REJIS by Darnell or Rodgers, limited to improper use related to Appellants,
2. Communications of City employees with other law enforcement agencies regarding background checks of Appellants,
3. Reasons for employment termination of Darnell, specifically as it relates to Appellants, with any other reasons redacted, and
4. Reasons for employment disciplinary action of Rodgers, with any other reasons redacted.
Section 610.021 contains a list of records that a governmental body may choose not to disclose. The relevant portions are as follows:
Except to the extent disclosure is otherwise required by law, a public governmental body is authorized to close ... records, to the extent they relate to the following:
(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.
(13) Individually identifiable personnel records, performance ratings or records pertaining to employees or applicants for employment....
However, this section’s exemptions must be read together with the rest of the Sunshine Law. The Missouri Supreme Court has noted the permissive language of Section 610.021, that the section is qualified by its own terms, and that it applies only where disclosure is not otherwise required by law. Guyer v. City of Kirkwood,
The trial court did not see the documents responsive to Appellants’ request, nor did the court in its summary judgment analyze any sections of the Sunshine Law requiring disclosure as a threshold determination prior to considering the exemptions to disclosure under Section 610.021. Based on the record here, the relevant sections of the Sunshine Law, and their interpretation by the Missouri Supreme Court, we conclude the trial court did not have sufficient evidence to make the determination that the above exemptions in Section 610.021 apply as a matter of law to all of Appellants’ requests. Because Appellants requested both public records in general and investigative reports in specific, we examine the Sunshine Law as it relates to each type of document.
1. Public Records Generally
Section 610.010 defines a “public record” as “any record, ... retained by or of any public governmental body,” and then includes a non-exhaustive list of examples. See Samantar v. Yousuf,
In applying these provisions to Appellants’ general request for records, the first two types of information Appellants requested concerned REJIS access and communication about background checks of Appellants. Neither of these specifically request “personal information” as defined by the exemption in Section 610.021.3, nor do they specifically target individual personnel records or information regarding job performance of the employees, under subsection 13. For example, a log showing a REJIS inquiry is not a personnel record or job performance rating. However, it is possible that records responsive to these requests could contain exempt information. For example, a personnel record may also contain a record of REJIS inquiries. Again, under Section 610.024, even if records contain personal information that the City is permitted to withhold under an exemption, the City is obligated to make available the public portions of the records responsive to these two requests. See State ex rel. Mo. Local Gov’t Ret. Sys. v. Bill,
It is unclear from the record whether the City has public records, besides any investigative report, that contain information covered by Appellants’ first two requests. Thus, the record is insufficient to support the trial court’s summary judgment that any responsive records were exempt from disclosure. To the extent the City has withheld any documents responsive to these first two requests that contain both exempt and nonexempt information, upon the belief that the existence of some personal information allows closure of the entire document, the City must disclose any non-exempt portion under Section 610.024.1. Moreover, it was the City’s burden under Section 610.027.2 to demonstrate compliance with the Sunshine Law once Appellants showed that the City was subject to the Sunshine Law and had closed records. Thus, we remand for the trial court to examine any public records containing information covered by Appellants’ first two requests and to determine
Conversely, Appellants’ remaining two requests as they relate to public records besides any investigative reports, seek records containing the reasons for discipline of Darnell and Rodgers. These two requests fall squarely under the Sunshine Law’s exemption in Section 610.021, 3, regarding “firing [and] disciplining ... of particular employees by a public governmental body when personal information about the employee is discussed or recorded.” Again, “personal information” is “information relating to the performance or merit of the employees.” Section 610.021.3. Appellants have pointed to no provision otherwise requiring disclosure of disciplinary records falling under only the general definition of public records.
Appellants argue that they limit their requests to reasons related to Appellants themselves and the alleged criminal activity, and thus they are entitled to the information; however, the exemptions in Section 610.021.3 and 13 make no exception requiring disclosure to third parties who may be part of the reason for discipline. Rather, the exemptions allow the public body to close disciplinary records at its discretion. This is precisely the kind of information sought by Appellants’ third and fourth requests, and no genuine factual dispute exists regarding these two requests. The trial court did not err as a matter of law in determining that these two requests sought information from public records that the City may withhold as exempt. Thus, we affirm the trial court’s summary judgment as it relates to any public records other than investigative reports, containing only information responsive to Appellants’ requests for the reasons for discipline of Darnell and Rodgers.
2. Investigative Reports
Regarding Appellants’ more specific request for investigative reports, the one document at issue here is an Internal Affairs report, which resulted from the Internal Affairs investigation Chief Shockey ordered upon receiving Laut’s complaint. The City disagrees with Appellants’ argument that the Internal Affairs report is an “investigative report” under the statutory definition. Based on the record here, we find a genuine factual dispute exists as to the nature of the Internal Affairs report, which precluded summary judgment regarding whether this report must be disclosed.
a. Relevant Law
Section 610.100 of the Sunshine Law contains additional guidelines regarding this particular type of public record. Section 610.100.1(5) defines an “investigative report” as the following:
[A] record, other than an arrest or incident report, prepared by personnel of a law enforcement agency, inquiring into a crime or suspected crime, either in response to an incident report or in response to evidence developed by law enforcement officers in the course of their duties.
The key aspect of an investigative report is that it is “directed to alleged criminal conduct.” Guyer,
In Guyer v. City of Kirkwood, the Missouri Supreme Court specifically considered the question of whether an internal police report fell under Section 610.100.2 (investigative report open once investigation inactive) or Section 610.021 (personnel records exempt from disclosure).
The Supreme Court examined the two sections above and found that, based on the permissive language of Section 610.021’s exemptions (allowing public governmental body to close records “[ejxcept to the extent disclosure is otherwise required by law”) and the express public policy statement of the Sunshine Law in favor of open records (Section 610.011.1), this public policy “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.” Id. The court concluded that the requirement of open investigative reports in Section 610.100.2 (investigative reports are open records once investigation is inactive) overrides the permissive exemption for personnel records in Section 610.021. Id.
However, the Supreme Court in Guyer did not consider any application of Section 610.024, which requires a public body to separate exempt and non-exempt portions of a public record and to make the nonexempt portions available.
Again, Section 610.010 contains the definition of a “public record” and applies to the term “as used in this chapter.” The definition is quite broad, encompassing “any record ... retained by or of any public governmental body.” An investigative report is “a record ...,” Section 610.100.1(5), retained by a type of public governmental body: a law enforcement agency. Thus, an investigative report is a type of public record under the statute. See also Guyer,
This may seem at first look to contradict Guyer. However, according to the Missouri Supreme Court there, where a document “fits equally” under an exemption and a provision requiring disclosure, the document should be disclosed, notwithstanding the fact that an exemption would otherwise apply. Guyer,
b. Existence of Factual Dispute
Turning to the circumstances here, because our review requires us to take a fresh look at both elements of summary judgment, we first evaluate whether there is a genuine dispute regarding a material fact. See ITT Commercial Fin. Corp.,
Specifically, the parties disagree about what is contained in the Internal Affairs report following the investigation. The City asserts that the only Internal Affairs inquiry concerned the employees’ fitness to perform their job duties; there was no criminal investigation. Thus, according to
Appellants disagree, pointing out that the Internal Affairs investigation took place in response to a complaint of criminal activity, because the unauthorized access of a law enforcement computer system is a federal crime under Title 18 U.S.C. Section 1030(a)(2), (4) (2012).
Our review of the record reveals competent evidence that supports two differing yet plausible views as to the content of the Internal Affairs report, which is material to the determination of whether it should be disclosed. This is primarily based on the affidavit of Chief Shockey, where he attests, “I received a complaint from [Laut], ... [about] two City employees, [Darnell] and [Rodgers], regarding their access to REJIS.” He continues, “After receiving the complaint, I ordered that an Internal Affairs Investigation be commenced for the purpose of determining their fitness to perform their job duties.”
It is reasonable to infer from Chief Shockey’s statements that upon receiving Laut’s complaint of improper access to REJIS, Chief Shockey ordered an investigation into the alleged criminal conduct. See Guyer,
However, Chief Shockey’s affidavit also states that he ordered an internal inquiry regarding job performance. Even though the Internal Affairs investigation came about after Laut’s complaint alleging criminal conduct, it is possible the Internal Affairs report evaluated job performance independently of any investigation into alleged criminal conduct. If true, the report would be more appropriately classified as a personnel record. With no other law requiring disclosure of such a public record, the City would be permitted to withhold it under Section 610.021.3 and 13.
Thus, from the record, there is a genuine dispute concerning whether the Internal Affairs report is directed to alleged criminal conduct and therefore constitutes an investigative report. See Guyer,
c. Remedy and Instructions upon Remand for Internal Affairs Report
Neither party believes remand is necessary despite their notable disagreement over the nature of the Internal Affairs report. Both parties rely on burdens and presumptions to argue that summary judgment is nevertheless appropriate given the circumstances. We disagree.
First, the City argues that Appellants had the burden to establish that the Internal Affairs investigation was related to criminal conduct by requesting an in camera review under Section 610.100.5 (a means of accessing investigative reports that are “otherwise closed”; allowing in camera review by the trial court).
Additionally, the City distinguishes Guyer because there, the officer who was the subject of the investigation was the requesting party; whereas here, Appellants are third parties. See Guyer,
Likewise, Appellants argue that we should enter summary judgment in their favor. Appellants rely on the Missouri Supreme Court’s presumption in Guyer that if the citizen complaint implicated the officer in criminal conduct, the resulting report concerned that criminal conduct, and thus the resulting report should be disclosed.
Thus, we remand for the trial court to resolve this factual dispute by examining the Internal Affairs report in camera. Rather than mandated by a particular section of the Sunshine Law here, in camera review is a practical remedy that would resolve any factual dispute, while at the same time maintaining confidentiality of documents that may be exempt from disclosure under the Sunshine Law. See Chasnoff v. Bd. of Police Comm’rs,
In light of the Sunshine Law and the Missouri Supreme Court’s interpretation of Sections 610.100 and 610.021 in Guyer, if the Internal Affairs report qualifies equally as an “investigative report” under the statutory definition and as a disciplinary or personnel record, and it contains any of the information requested by Appellants, then it must be disclosed. See Guyer,
Attorney’s Fees and Costs
Finally, Appellants argue the trial court erred in denying their request for civil penalties, costs, and attorney’s fees. These remedies are available in the event the trial court finds a violation of the Sunshine Law. See Section 610.100.5 (investigative reports) and 610.027 (other public records). Because at this point we cannot determine as a matter of law whether any violation occurred, the trial court must reconsider this issue upon remand. We deny Appellants’ motion for attorney’s fees on appeal for the same reason.
Conclusion
The exemptions to disclosure of documents under Section 610.021.3 and 13 of the Sunshine Law may only be applied after determining whether disclosure of documents is otherwise required by law. Based on the record here, the evidence was not sufficient for the trial court to determine whether the Sunshine Law’s exemptions could apply to all of the documents responsive to Appellants’ requests. Moreover, a genuine issue of material fact exists regarding whether the Internal Affairs report qualifies as an investigative report or a personnel record. For these reasons, we vacate the summary judgment of the trial court as it relates to the documents responsive to Appellants’ request; but specifically exclude any public records, besides investigative reports, containing only the reasons for discipline of the City employees, as that type of exempt document is not otherwise required to be disclosed by law. We remand with instructions for the trial court to examine the remaining responsive documents in camera, and to determine which documents or portions of documents, if any, must be disclosed under the Sunshine Law in accordance with this opinion.
AFFIRMED IN PART; REVERSED AND REMANDED IN PART.
Notes
. All statutory references are to RSMo. (Supp. 2012) unless otherwise indicated.
. We note that Rodgers' name has the spelling "Rogers” in Appellants’ documents throughout the record, but that the parties refer to the same individual. We use the spelling contained in the City's documents as these are provided by Rodgers’ employer and more likely to reflect the correct spelling.
. Appellants also requested incident reports, but the City responded that there were no existing incident reports. Because this statement is undisputed in the record, we do not discuss incident reports here. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp.,
. Again, the relevant subsections here would allow a public governmental body to withhold
. Here, the trial court will have to determine upon remand whether the records remain closed or any redaction is warranted under Section 610.100.3.
. Though not directly applicable here, the parties have referred to Section 610,100.5 in their arguments, so we note its language here, and address their arguments, infra. This subsection applies to investigative reports that are "otherwise closed,” for example, a report concerning an investigation that has not yet concluded. Section 610.100.5 provides a balancing test for disclosure of such reports, and it provides that "the investigative report in question may be examined by the court in camera.” Section 610.100.5 (court weighs benefit to person bringing action or to public against harm to public, to law enforcement, or to any person identified in report).
. Additionally, none of the briefs submitted to the court in Guyer raised the issue of the applicability of Section 610.024 to the documents at issue there. Presumably, this is because there the requesting party was the police officer, and any personnel or disciplinary records at issue would have been his own.
. For example, the Supreme Court did not mention that if the report contained social security numbers, those should be redacted as well. Section 610.035.
. We acknowledge this distinction may prove difficult to apply, but that doing so not only fulfills the plain language of the statute, but also serves an important policy concern that is particularly present in the context of investigative reports involving law enforcement officers. This is because any citizen complaint against a police officer contained in an internal affairs report can involve an alleged criminal offense, as literally any complaint can be simultaneously labeled a criminal violation of the complainant's civil rights under federal law. Investigations of all such complaints would therefore result in investigative reports, and disallowing application of Section 610.024 would essentially result in police officers having no right to personnel or disciplinary privacy under the Sunshine Law. We find such a result is not mandated by the plain language of the statute. Also, we note that Section 610.024.2 encourages a public governmental body to design public records with the distinction between exempt and non-exempt information in mind, so that open portions are more easily distinguishable from exempt portions.
. Appellants' petition and motion for summary judgment also alleged that one of the City employees may have impersonated a law enforcement officer, which is a state crime under Section 575.120, but they do not discuss this claim on appeal.
. We also note the parties confirmed the existence of this factual dispute in their respective supporting documents at the summary judgment stage. In the City’s statement of uncontroverted facts, it stated that Chief Shockey "ordered an internal affairs investigation to evaluate the fitness of the employees to perform their job duties.” In Appellants’ response, they "deny that that was the real reason” for the investigation, because Laut’s complaint concerned criminal conduct, and because the Missouri Supreme Court stated that when criminal conduct is alleged, it should be presumed that that conduct was the subject of the investigation. Guyer,
. The specific statutory language is this: "The investigative report in question may be examined by the court in camera.” Section 610.100.5.
. The City also makes a policy argument in favor of such a burden, arguing that opening records to those who merely allege criminal conduct undermines the confidentiality of police officers’ personal information. However, the statute only opens records when alleged conduct is investigated, and that includes records that conclude there was no wrongdoing. Additionally, issues of policy must be addressed to the state legislature, and we are tasked only to give effect to the statute as written by the legislature. Spradlin v. City of Fulton,
.Similarly, the trial court indicated during its hearing on the summary judgment motions that the fact no criminal charges were brought against the employees meant the records should be closed. The Sunshine Law provides for confidentiality when arrests do not result in criminal charges, or when criminal charges do not result in conviction and sentence. Section 610.100.2 (arrest report