the sunshine law · examples: pdfs of hard copies ... old police blotter date, time, location, name...
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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
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