THE SUNSHINE LAW A Brief Guide for Council Members, Alderpersons and Staff Members

Nathan M. Nickolaus Lauber Municipal Law, LLC

Nnickolaus@Laubermunicipal.com 660-672-4597

DISCLAIMER These materials and the related presentation are intended for discussion purposes and to provide those attending the meeting with useful ideas and guidance on the topics and issues covered. The materials and the comments of the presenters do not constitute, and should not be treated as, legal advice regarding the use of any particular technique, device, or suggestion, or its legal advantages or disadvantages. Although we have made every effort to ensure the accuracy of these materials and the presentation, neither the attorneys presenting at this meeting nor Lauber Municipal Law, LLC assume any responsibility for any individual’s reliance on the written or oral information presented.

WHAT IS THE SUNSHINE LAW

What is the Sunshine Law?

A series of laws found in section 610 of the Missouri Statutes designed to give people a chance to know what their government is doing.

WHAT THE SUNSHINE LAW ISN’T Not a “right to know”

Only an ability to find out

Not a requirement that government justify its policies

Not a substitute for an educated public

Unfortunately used as often for bad purposes as good

WHAT IS THE SUNSHINE LAW

Sunshine Law Governs Two Categories Public

Records Public

Meetings Police Records

WHAT KIND OF INFORMATION CAN YOU GET? Accident reports

Personal Injury cases Criminal reports

Custody cases Names of residents

Potential witnesses Traffic studies Contract and Bid

Documents Paramedic reports

(sometimes)

Video Cams / Body cams

Health Inspections / Code Inspections / Fire Inspections

Utility Bills

The Sun Shines Liberally The Sunshine Law is to be “Liberally” construed.

Like this: Not like this: It means that all meetings and records are open

unless there is something that specifically authorizes them to be closed

CONSTRUCTION AND INTERPRETATION

CONSTRUCTION AND INTERPRETATION Generally, the Sunshine Law allows records and meetings to be closed, but does not require them to be closed. Some notable exceptions

Personnel records Most closed police records

This means that the default is that a record is open

SUNSHINE LAW APPLIES TO PUBLIC BODIES Public governmental body, any legislative,

administrative or governmental entity created by the constitution or statutes of this state, by order or ordinance of any political subdivision or district, judicial entities when operating in an administrative capacity, or by executive order. 610.010

Cities Counties the State (and their governing bodies)

SUNSHINE LAW APPLIES TO PUBLIC BODIES Sunshine Law also applies

to: Committees Boards and Commissions

created by a Public Body

SUNSHINE LAW APPLIES TO PUBLIC BODIES Quasi-Governmental

Organizations Primary purpose to

enter into contracts with a governmental entity OR

Serves a governmental function evidenced by the ability to allocate tax credits, tax abatement, eminent domain or public debt

SUNSHINE LAW APPLIES TO PUBLIC BODIES

Certain individuals (like the Sheriff) But individuals can’t

have meetings

SUNSHINE LAW DOESN'T ALWAYS APPLY

Sunshine Law Does NOT Apply To: A subdivision board Private corporations Courts Staff meetings

OPEN MEETINGS What Constitutes A Meeting?

Must be a quorum Must be discussing public business

Toronto City Council Meeting or Party?

OPEN MEETINGS

What Constitutes a Meeting?

“Public meeting” - any meeting of a public governmental body subject to sections 610.010 to 610.030 at which any public business is discussed, decided, or public policy formulated,”

OPEN MEETINGS What is public business? “Public business” is defined as “all matters which relate in any way to the performance of the public governmental body’s functions or the conduct of its business.” Definition is very broad

OPEN MEETINGS What Constitutes A Meeting?

Specifically excluded from the definition of a public

meeting are informal gatherings by members of public governmental bodies for social or ministerial purposes where there is no intent to violate the public policy of openness. (Section 610.010(5))

NON-TRADITIONAL MEETINGS Serial Meetings E-Mail?

OPEN RECORDS

What is a Record? Must physically exist No duty to create But may be electronic

It must be in the possession of

the government (or its agents) Includes records held for gov’t. Even momentary if in

possession at time of request

OPEN RECORDS If a record contains open and closed data, government is required to produce the record but redact the closed information

OPEN RECORDS

Emails When are council emails public?

Emails on city account / equipment Emails directed to quorum of council

Must include custodian of record

CLOSED RECORDS

Records presumed to be open Records may only be closed

for 24 specific reasons and “as otherwise provided by law”

Most common: Litigation/Legal Advice Real Estate Personnel

MAKING REQUESTS THAT PRODUCE RESULTS Sunshine Law can be an inexpensive method of

gathering information If done right

It can be an expensive diversion if done poorly

CRAFTING YOUR REQUEST

Form of Request No set form Doesn’t have to be in writing – But Should Be!

Gov’t can't require you to say why they want the records

Set your price point Request reasons for denial

OPEN RECORDS Common Mistakes Lawyers Too vague ( Gov’t doesn’t have to answer) To broad (expensive, not likely to get what

you are looking for) Not a record Asks to create a record To legalistic Sent to wrong person “Its more important to say what you mean than to mean what you say” Alice in Wonderland

RECORDS REQUESTS - TIMING

Gov’t has to respond in 3 days Respond, not provide the records Only small requests likely to be in

3 days Custodian should provide an

estimate of cost and timing

RECORDS REQUESTS

Format of Response If requested, must provide in format desired

If that is readily possible Does not require government to reformat, transcribe

or otherwise create a new record Examples:

PDFs of hard copies Convert spread sheet to PDF Provide original Word document Not make spreadsheet from various documents

FEES

Unlike Request for Production you have to pay

10 Cents per page Copying at average salary of clerical

staff Research at actual staff cost No Cost to View

FEES

Attorney’s Fees Some cities will charge for Law on this is unclear White v. City of Ladue, 422

S.W.2d 439 (E.D. 2013) upheld Some Circuit Courts have

rejected

POLICE RECORDS

Three types: Incident Reports

Old police blotter Date, time,

location, name of victim, and immediate facts

Arrest Reports

Investigation File

POLICE RECORDS

Arrest Reports Essentially the

booking report Open – If not

charged in 30 days becomes closed

Investigation File Closed until case

concluded

POLICE RECORDS Charges for police records are governed by same rules as regular records Accident reports are also charged at same rate

POLICE INTERNAL INVESTIGATIONS

Much litigation on this issue On the one hand, investigations are a personnel

issue, so should be closed On the other hand, they are criminal investigations,

which may be open Courts resolve this in favor of openness But, if police use a two tracked investigation, one

personnel, one criminal – personnel side stays closed.

WHEN IN DOUBT – CONSULT YOUR SUNSHINE LAW BOOK!

Disclaimer: Shameless Self Promotion

QUESTIONS? Nathan M. Nickolaus Lauber Municipal Law, LLC Nnickolaus@Laubermunicipal.com 660-672-4597