MISSOURI SUNSHINE LAW

MISSOURI SUNSHINE LAW MISSOURI MUNICIPAL LEAGUE 2008 ELECTED OFFICALS TRAINING CONFERENCE Presented by: Paul A. Campo Williams & Campo, P.C. 200 NE Missouri Road, Suite 200 Lee s Summit, Missouri 64086 816-251-4646 pcampo@publiclawfirm.com

INTRODUCTION Chapter 610 of the Revised Statutes of Missouri is titled Governmental Bodies and Records Law and is commonly known as the Sunshine Law. Originally enacted in 1973, the Sunshine Law is intended to open governmental meetings, records, and votes to the public. The statutes also specify when it is lawful to close meetings, records and votes to keep them confidential. The Missouri Legislature has declared that the Sunshine Law is to be liberally construed in favor of allowing public access. RSMo 610.011. Who Is Subject To The Sunshine Law? Public governmental bodies; committees, boards, commissions; advisory committees; and quasi-public governmental bodies are subject to the Sunshine Law. Public governmental bodies [A]ny legislative, administrative or governmental entity created by the constitution or statutes of this state, by order or ordinance of any political subdivision or district.... RSMo 610.010 (4). Committees, Boards and Commissions Any committee appointed by or at the direction of any [public governmental body] and which is authorized to report to [the public governmental body].... RSMo 610.010 (4). Advisory Committees [A]ny advisory committee appointed by or at the direction of [a public governmental body] for the specific purpose of recommending, directly to the public governmental body s governing board or its chief administrative officer, policy or policy revisions or expenditures of public funds.... RSMo 610.010 (4). Quasi-Public Governmental Bodies [A]ny person, corporation or partnership existing either as an unincorporated association or incorporated pursuant to Chapter 352, 353 or 355 of the Missouri Statutes, which either: Has as its primary purpose to enter into contracts with public governmental bodies, or to engage primarily in activities carried out pursuant to an agreement or agreements with public governmental bodies; or Performs a public function, as evidenced by... capacity to confer or other wise advance... the allocation or issuance of tax credits, tax abatement, public debt, tax-exempt debt, rights of eminent domain, or the contracting of leaseback agreements on structures whose annualized payment commit public tax revenues ; or [A]ny association that directly accepts the appropriation of money from a public governmental body, but only to the extent that a meeting, record, or vote relate to such appropriation. RSMo 610.010 (4). 2

What Is Subject to the Sunshine Law? All meetings, records, votes, actions and deliberations of public governmental bodies [shall] be open to the public, except as specifically provided by law. RSMo 610.011.1 Public Meetings [A]ny meeting of a public governmental body... at which public business is discussed, decided or public policy formulated, whether such meeting is conducted in person or by means of communication equipment...." RSMo 610.010 (5). Public meeting includes: A meeting where a quorum of a governing body, board, commission, or committee is gathered in person to conduct public business. RSMo 610.010 (5). See also Colombo v. Buford, 935 S.W.2d 690, 698). A meeting where a quorum of a governing body, board, commission, or committee is gathered electronically to conduct public business. RSMo 610.010 (5). RSMo 610.010 (5). A process by which a vote is taken of all or a majority of the members of a governing body, board, commission, or committee in lieu of holding a meeting in one place. RSMo 610.010 (5) Conference Call; Video Conference; Internet Chat; Internet Message Board 3

Public meeting excludes: [A]n informal gathering for social purposes when there is no intent to avoid the purposes of the Sunshine Law. RSMo 610.010 (5). An informal gathering is characterized, in part, by the fact that there is no agenda, no call to order, people do not take turns talking to the entire gathering, and no vote is taken. See Colombo v. Buford, 935 S.W.2d 690, 696 (Mo Ct. App. 1996). A meeting of less than a quorum of a governing body, board, commission, or committee, where there is no intent to avoid the Sunshine Law. Colombo v. Buford, 935 S.W.2d 690, 698 (Mo. Ct. App. 1996). Public Business [A]ll matters which relate in any way to the performance of the public governmental body s functions or the conduct of its business. RSMo 610.010 (3). Public Records Includes [A]ny record, whether written or electronically stored, retained by or of any public governmental body, including any report, survey, memorandum or other document or study prepared and presented to the public governmental body by a consultant or other professional service paid for in whole or in part by public funds... RSMo 610.010 (6). Includes "[A]ny message relating to public business by electronic means... sent to two or more members of that body so that, when counting the sender, a majority of the body's members are copied. RSMo 610.025. Must concurrently transmit that message to either the member's public office computer or the custodian of records in the same format. Any message received by the custodian or at the member's office computer shall be a public record. Excludes [A]ny internal memorandum or letter received or prepared by or on behalf of a member of a public governmental body consisting of advice, opinions and recommendations in connection with the deliberative decision-making process of said body, unless such records are retained by the public governmental body or presented at a public meeting. Public Votes [A]ny vote cast at any public meeting of any public governmental body. 4

How Do You Make Public Meetings, Records And Votes Open? Meetings, records, and votes are made open to the public by following the procedures set forth in the Sunshine Law including giving notice of public meetings and allowing public access to records. Procedures for Public Meetings Notice of the time, date, place and a tentative agenda for the meeting must be posted at least twenty-four hours in advance, exclusive of weekends and holidays when the facility is closed, in a place easily accessible to the public and designated for the purpose of giving notice. RSMo 610.020. Notice must be given to the news media, if they so request, at the same time it is made available to members of the public governmental body. RSMo 610.020.1. "If a public body plans to meet by Internet chat, Internet message board, or other computer link, it shall post a notice of the meeting on its web site... and shall notify the public how to access that meeting." RSMo 610.020.1. Meetings shall be open to the public for their observation, in a room that is reasonably accessible, including accommodations for the handicapped or disabled, at a time reasonably convenient to the public, and of sufficient size to accommodate the anticipated attendance. RSMo 610.020 A public body shall allow for the recording by audiotape, videotape, or other electronic means of any open meeting" subject to guidelines established by the public body so as to minimize disruption to the meeting. RSMo 610.020. Recording a closed meeting is prohibited, unless the public body gives permission. Public participation is not required, except when public comment is specifically required by law, i.e. public hearings. A journal of minutes must be taken and retained. "The minutes shall include the date, time, place, members present, members absent and a record of any votes taken. The minutes of a roll call vote must say specifically how each individual voted. RSMo 610.020.7. An emergency meeting may be held for good cause. As much notice as is reasonably possible must be given. The good cause justifying the emergency meeting must be stated for the minutes. RSMo 610.020. A meeting may be held at a place that is not reasonably accessible to the public, or at a time not reasonably convenient to the public, if good cause justifying that 5

departure from the normal requirements is stated in the minutes.. RSMo 610.020. Procedures for Public Records Each public governmental body is to appoint a custodian who is to be responsible for the maintenance of the body s records. RSMo 610.023.1. Each public governmental body shall provide a reasonable written policy... regarding the release of information on any meeting, record or vote.... RSMo 610.028. Each public governmental body shall make available for inspection and copying by the public of [sic] that body s public records. RSMo 610.023. Each request for access to a public record shall be acted upon as soon as possible, but in no event later than the end of the third business day following the date the request is received by the custodian of records.... RSMo 610.023. [D]ocument production may exceed three days for reasonable cause. RSMo 610.023. If a request for access is denied, the custodian shall provide, upon request, a written statement of the grounds for such denial. RSMo 610.023. A fee for searching and reproducing records may be charged. RSMo 610.026. No more than 10 cents for paper up to 9x14 inches Hourly fee for duplicating time not to exceed the average hourly rate of pay for clerical staff of the public governmental body. Research time may be charged at the actual cost of research time. Must produce copies using employees that result in the lowest amount of charges for search, research, and duplication time. Fee for tapes, disks, pictures, maps, slides, audio, visual or paper larger than 9x14 inches shall include only the cost of copies, staff time (not to exceed the average hourly rate of pay for the staff of the public governmental body), and if necessary, the cost of the disk, tape, or other medium used for duplication. Fees for maps, blueprints, or plats that require special expertise to duplicate may include the actual rate of compensation for trained personnel required. If programming is required beyond the customary and usual level to comply with a request for records or information, the fees for compliance may include the actual costs of such programming. Note: "Copying" is defined as "Copies provided as detailed in section 610.026, if duplication equipment is available." RSMo 610.010(2). 6

The person requesting the records may request an estimate of the cost. Payment of fees may be requested prior to making copies. RSMo 610.026. Documents may be furnished without charge or at a reduced charge.... when the public governmental body determines that waiver or reduction of the fee is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the public governmental body and is not primarily in the commercial interest of the requester. RSMo 610.026. 7

Procedures for Public Votes [A]ll votes shall be recorded.... RSMo 610.015. [W]hen a roll call vote is taken, the minutes shall attribute each yea and nay vote or abstinence if not voting to the name of the individual member of the public governmental body. RSMo 610.020.7. When a roll call vote is taken only those "members of the public governmental body who are physically present and in attendance at the meeting" may vote. RSMo 610.015. The statute does not prohibit listening to a meeting via phone, but an elected official cannot cast a roll call vote by phone. Exception -- This rule does not apply to committee meetings. This rule does not apply to an emergency meeting if: A quorum of the public body is physically present and in attendance; Less than a quorum is participating via telephone, facsimile, Internet, or any other voice or electronic means; and The nature of the emergency is stated in the minutes. Implied You must have a quorum physically present at any meeting to conduct a roll call vote. A person attending by phone would not count towards the quorum. 8

How do you close meetings, records or votes? The Sunshine Law permits but does not require, meetings, records, and votes to be closed and kept confidential for certain specific reasons. Permissible Reasons to Close Meetings, Records, and Votes RSMo 610.021 Legal actions, causes of action or litigation.... RSMo 610.021 (1). [C]onfidential or privileged communications between a public governmental body or its representatives and its attorneys. RSMo 610.021 (1). "Legal work product." RSMo 610.021 (1). Leasing, purchase or sale of real estate by a public governmental body where public knowledge of the transaction might adversely affect the legal consideration therefore. RSMo 610.021 (2). Hiring, firing, disciplining or promoting of particular employees by a public governmental body when personal information about the employee is discussed or recorded. RSMo 610.021 (3). Individually identifiable personnel records, performance records, performance ratings or records pertaining to employees or applicants for employment.... RSMo 610.021 (13). Exception Does not apply to name, position, salary and length of service of officers and employees. RSMo 610.021 (13). Other reasons specifically provided by the Sunshine Law, or other law. Operational guidelines and policies developed, adopted, or maintained by any public agency responsible for law enforcement, public safety, first response, or public health for use in responding to or preventing any critical incident which is or appears to be terrorist in nature and which has the potential to endanger individual or public safety or health. RSMo 610.021 (18). Does not include expenditures, purchases, or contracts. Must affirmatively state in writing that disclosure would impair safety or public health. Must state in the same writing that the public interest in nondisclosure outweighs the public interest in disclosure. Expires December 31, 2008. Existing or proposed security systems and structural plans of real property owned or leased by a public governmental body, and information that is voluntarily submitted by a nonpublic entity owning or operating an infrastructure, for use to devise plans for protection of that infrastructure, the public disclosure 9

of which would threaten public safety. RSMo 610.021 (19). Does not include records related to procurement or expenditures Must affirmatively state in writing that disclosure would impair the public governmental body's ability to protect the security or safety of persons or real property. Must state in the same writing that the public interest in nondisclosure outweighs the public interest in disclosure. Expires December 31, 2008. Records that identify the configuration of a computer, computer system, computer network, or telecommunications network. RSMo 610.021 (20). Credit card numbers, personal identification numbers, digital certificates, physical and virtual keys, access codes or authorization codes that are used to protect the security of electronic transactions. RSMo 610.021 (21). Procedures for Closed Meetings A meeting may be closed by an affirmative vote of the majority of a quorum of the public governmental body. The vote of each member... and the specific reason for closing... shall be announced publicly at an open meeting... and entered into the minutes. RSMo 610.022. A member of the public governmental body may state an objection to the motion if that member believes the motion would cause a meeting, record or vote to be closed in violation of the Sunshine Law. RSMo 610.022. The objection must be made at the time of the motion or before the vote. The objection shall be entered in the minutes. The member making the objection shall be allowed to fully participate. If the member also voted against closing the meeting, record or vote, the objection and vote is an absolute defense to any claim filed against the objecting member pursuant to the Sunshine Law. Notice of the time, date and place of a closed meeting shall be given, in accordance with the procedures for posting open meetings. RSMo 610.022. Public governmental bodies shall not discuss any business in a closed meeting... which does not directly relate to the specific reason announced to justify the closed meeting.... RSMo 610.022. Procedures for Closed Records Closed records must be separated from open records i.e. the exemption for personnel records does not include names, positions, salaries and lengths of 10

service.... RSMo 610.024 and RSMo 610.021 (13). Some records may be closed only for a limited period of time i.e. records relating to the lease, purchase or sale of real estate shall be made public within seventytwo hours after execution of lease, purchase or sale of the real estate. RSMo 610.021 (2). If a request for access is denied, the custodian shall provide, upon request, a written statement of the grounds for such denial. Such statement shall cite the specific provision of law under which access is denied.... Procedures for Closed Votes Any votes taken during a closed meeting shall be taken by roll call. RSMo 610.015. Some votes may be closed only for a limited period of time. [I]n matters involving the exercise of eminent domain, the vote shall be announced or become public immediately following the action on the motion to authorize institution of such legal action. RSMo 610.021 (1). A vote relating to the lease, purchase or sale of real estate, shall be made public within seventy-two hours after execution of the lease, purchase or sale of the real estate. [A]ny vote on a final decision, when taken by a public governmental body, to hire, fire, promote or discipline an employee... must be made available with a record of how each member voted to the public within seventy-two hours of the close of the meeting where such action occurs.... RSMo 610.021 (3). What Are The Standards And Penalties For Sunshine Law Violations? Burden of Proof Once a party seeking judicial enforcement of sections 610.010 to 610.026 demonstrates to the court that the body in question is subject to the requirements of sections 610.010 to 610.026 and has held a closed meeting, record or vote, the burden of persuasion shall be on the body and its members to demonstrate compliance with the requirements of sections 610.010 to 610.026. RSMo 610.027.2. Fines for Knowing Violations -- Upon a finding by a preponderance of the evidence that a public governmental body or a member of a public governmental body has knowingly violated sections 610.010 to 610.026, the public governmental body or the member shall be subject to a civil penalty in an amount up to one thousand dollars... the court may order the payment by such body or member of all costs and reasonable attorneys fees to any party successfully establishing a violation. "The 11

court shall determine the amount of the penalty by taking into account the size of the jurisdiction, the seriousness of the offense, and whether the public governmental body or member of a public governmental body has violated sections 610.010 to 610.026 previously." RSMo 610.027.3. Fines for Purposeful Violations -- Upon a finding by a preponderance of the evidence that a public governmental body or a member of a public governmental body has purposely violated sections 610.010 to 610.026, the public governmental body or the member shall be subject to a civil penalty in an amount up to five thousand dollars... the court may order the payment by such body or member of all costs and reasonable attorneys fees to any party successfully establishing a violation. "The court shall determine the amount of the penalty by taking into account the size of the jurisdiction, the seriousness of the offense, and whether the public governmental body or member of a public governmental body has violated sections 610.010 to 610.026 previously." RSMo 610.027.4. Invalidation of Actions Upon a finding by a preponderance of the evidence that a public governmental body has violated any provision of sections 610.010 to 610.026, a court shall void any action taken in violation of sections 610.010 to 610.026, if the court finds under the facts of the particular case that the public interest in the enforcement of the policy of sections 610.010 to 610.026 outweighs the public interest in sustaining the validity of the action taken in the closed meeting, record or vote. RSMo 610.027.4. Statute of Limitations Suit for enforcement must be brought within one year from which the violation is ascertainable and in no event shall it be brought later than two years after the violation. RSMo 610.027.4. Reliance on Written Policy Each public governmental body shall provide a reasonable written policy in compliance with sections 610.010 to 610.030, open to public inspection, regarding the release of information on any meeting, record or vote and any member or employee of the public governmental body who complies with the written policy is not guilty of violation of the provisions of sections 610.010 to 610.030 or subject to civil liability for any act arising out of his adherence to the written policy of the agency. RSMo 610.028. "No person who in good faith reports a violation of the provisions of sections 610.010 to 610.030 is civilly liable for making such report, nor, if such person is an officer or employee of a public governmental body, may such person be demoted, fired, suspended, or otherwise disciplined for making such report." RSMo 610.028. 12