PEOPLE'S LEGAL FRONT
BECAUSE THESE ARE NOT THE TRADE SECRETS OF ATTORNEYS
LAWS MOTIONS LINKS
IN THE 31ST JUDICIAL
THE STATE OF MISSOURI, COUNTY OF
Lee Allen Martin,
) Case #: 198CC4528
Robert Sommers, City
Comes now, Lee Allen Martin, a resident of the State
of Missouri, pursuant to RSMo 610.027.1, RSMo 527.010 through 527.130
and asks that this honorable court grant the appropriate constitutional
relief to the plaintiff of this state in the aforementioned statute. Jurisdiction
of this court is enacted pursuant to RSMo 610.027.1 "Suits
to enforce sections 610.010 to 610.026 shall be brought in the circuit
court for the county in which the public governmental body has its principal
place of business."
STATEMENT OF FACTS
On October 21, 1998 plaintiff did take to call and
request of the Springfield Police Department to view policy and procedures
promulgated by the Springfield Police Department, specifically requested
to view the canine policy and procedure. To which, one Lt. David Nokes
speaking on behalf of the acting police chief summarily denied plaintiff.
Lt. Nokes informed plaintiff that for the public to view said documents
would help criminals in their criminal activity; therefore, it is the policy
not to release policy and procedure.
Plaintiff then took to call the attorney for the
police, one Carl Yendes, to which Mr. Yendes informed plaintiff that certain
portions of the policy and procedures for the police would be held closed
according to the sunshine laws. Plaintiff did disagree and notified Mr.
Yendes that if necessary a formal request to view said documents would
On October 26, 1998 Mr. Yendes did demand a formal
request before complying with the plaintiff’s request to view public documents.
Plaintiff did request that the Custodian of Record be made known to him
and Mr. Yendes stated that the custodian was the department head of the
various departments of the police department. Plaintiff did state to Mr.
Yendes that plaintiff believed that someone outside of the police department
should have been made custodian of record. Mr. Yendes suggested that plaintiff
call the City Clerk.
On October 26, 1998 Plaintiff did call the City Clerks
office and did talk to Mary who did transfer plaintiff to one Wanda Brown
of the Police Department who said "if I wanted to call her custodian of
record I could." Ms. Brown stated that she was only the custodian of the
criminal records, and had no access to the policy and procedures that was
being requested. Ms. Brown was of no help in trying to obtain permission
to view said records.
On October 26, 1998 plaintiff then took to call the
City Clerk’s office and ask to speak to the Clerk. One Ms. Brenda Cirtin
did announce herself as the clerk for the City of Springfield as well as
the Custodian of Records for City of Springfield. Ms. Cirtin then requested
that a formal request to view specific document be faxed to her office
at phone #417-864-1649, and notified the plaintiff that the City would
have 72 hrs. to make a reply. Plaintiff on the afternoon of October 26,
1998 did fax said request to the official custodian of record for the City
On October 30, 1998, plaintiff received a letter
from one Carl Yendes, Assistant City Attorney, citing RSMo 610.100(3)
that the Police Department procedures must be redacted, and further cites
RSMo 610.026.2 requesting an advance deposit of $1,000.00 before
a complete redacted copy of the Policy and Procedures could be produced
for the plaintiff. It should be noted that the City Attorney did provide
one very redacted copy of the Springfield Police Department Standard
Operating Guideline Directive Number 401.5 at no charge.
Chapter 610 of the RSMo defines the conduct of
governmental bodies and the records of such.
610.010.4 RSMo defines "Public governmental body,
any legislative, administrative 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, including:"
Section 610.010(6) RSMo defines public records
as "any record, whether written or electronically stored retained by or
of any public governmental body."
RSMo 610.011. 1. It is the public policy of this
state that meetings, records, votes, actions, and deliberations of public
governmental bodies be open to the public unless otherwise provided by
law. Sections 610.010 to 610.028 shall be liberally construed and
their* exceptions strictly construed to promote this public policy.
2. Except as otherwise provided by law, all public meetings of public
governmental bodies shall be open to the public as set forth in section
610.020, all public records of public governmental bodies shall
be open to the public for inspection and copying as set forth in sections
610.023 to 610.026, and all public votes of public governmental
bodies shall be recorded as set forth in section 610.015.
610.023 RSMo. Records of
governmental bodies to be in care of custodian, duties-- records may be
copied but not removed, exception, procedure--denial of access, procedure.1.
Each public governmental body is to appoint a custodian who is to be responsible
for the maintenance of that body's records. The identity and location of
a public governmental body's custodian is to be made available upon request.
2. Each public governmental body shall make available for inspection
and copying by the public of that body's public records. No person shall
remove original public records from the office of a public governmental
body or its custodian without written permission of the designated custodian.
3. 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
of a public governmental body. If access to the public record is not granted
immediately, the custodian shall give a detailed explanation of the cause
for further delay and the place and earliest time and date that the record
will be available for inspection. This period for document production may
exceed three days for reasonable cause. 4. 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 and shall be furnished to the requester no
later than the end of the third business day following the date that the
request for the statement is received.
610.026 RSMo 1. Each public governmental body
may prescribe reasonable fees for providing access to or furnishing copies
of public records subject to the following:
(1) Fees for copying public records shall not
exceed the actual cost of document search and duplication. 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; (2) Fees for
providing access to public records maintained on computer facilities, recording
tapes or discs, video tapes or films, pictures, slides, graphics, illustrations
or similar audio or visual items or devices shall include only the cost of copies
and staff time required for making copies.
Charlier v. Corum, 794 S.W.2d 676, 678 (Mo. App.
1990). A good faith belief does not relieve an official of liability
under the Sunshine Law for a purposeful violation.
PATRICK DEATON v. RALPH C. KIDD 932 S.W.2d 804."The
Committee picked the form (besides book copies) in which the statutes would
be available when it sold the tape. However, no evidence of any price chosen
by the Committee was stipulated to, beyond the impermissible price set
by the highest bid. Respondent seizes upon the Sunshine Law, 610.026.1(2),
where it provides that "fees for providing access to public records maintained
on computer facilities . . . shall include only the cost of copies and
staff time required for making copies." The trial court found that besides
violating § 610.023, the Director also violated § 610.026.1(2)
for charging more than the cost of copies and staff time. However, as mentioned
above, § 3.140 allows the Committee on Legislative Research
to set the price of statute books at a profit after "taking into account"
the costs of production, and this court believes these specific provisions
trump the Sunshine Law's cost requirements. The Director/Reviser still
violated the Sunshine Law, § 610.023, and as will be explained,
the trial court correctly ordered the Director/Reviser, upon written request,
to provide the Revised Statutes on computer tape "at the costs of duplication
and staff time.""
D.K.B. v. GARY TOELKE 903 S.W.2d 267 In their
briefs, the parties focus on whether the amendment to RSMo § 610.100
retroactively applied to appellant's cause of action. However, the possible
retroactive effect of RSMo § 610.100 is irrelevant for the
purposes of this case. The amendment to RSMo § 610.100 did
not purport to change RSMo § 610.027 or deprive appellant of
any of the remedies listed therein.
Kansas City Star Co. v. Fulson, 859 S.W.2d 934,
Under this statute, the plaintiffs bear the burden of persuasion until
they are able to meet two requirements: 1) the body represented by the
defendants is subject to the Sunshine Law; and 2) the body has held a closed
meeting, record, or vote.
Plaintiff believes that the statutes of the State of
Missouri provide for access to the records of the government and its agency
by the public and to violate such statutes is punishable pursuant to RSMo
610.027. The plaintiff bears the burden of persuasion Kansas City Star
Co. v. Fulson, 859 S.W.2d 934, "Under this statute, the plaintiffs
bear the burden of persuasion until they are able to meet two requirements:
1) the body represented by the defendants is subject to the Sunshine Law;
and 2) the body has held a closed meeting, record, or vote." The Plaintiff
notes that the Springfield Police Department is a governmental body pursuant
to RSMo 610.010, and further that a charge of $1,000.00 plus to
receive a copy of Policy and Procedures is prohibitive and in violation
of RSMo 610.026. Pursuant to Colombo v Buford RSMo 610.100
deals with arrest records only, and to expand 610.100 domain would
to leave the law enforcement community outside the bounds of public scrutiny.
RSMo 610.011 demands that the provisions be liberally construed.
The Superior Court's of Missouri have already ruled that computer format
should be made available pursuant to 610.026 RSMo, Deaton V Kidd.
Further, the legislature has also found so by enacting 610.026 and
610.029. The citizens of the State of Missouri are entitled
to view all public records as set down in Chapter 610 RSMo not otherwise
exempt, and no where in Chapter 610.010 to 610.026 RSMo are policy
and procedures held exempt. To do so would invalidate the public's right
to know how its tax dollars are being spent. Personnel records and information
on litigation are exempt; policy and procedures are not. The Springfield
Police Department may feel by keeping certain policy and procedures secret
they are better protecting the public; it is much more feasible that they
are only secret to protect the police from litigation stemming from the
violation of said policy and procedures. It would be more of a crime deterrent
for the criminal public to know the efficiency at which law enforcement
works; and, after all, aren’t the police in the business of preventing
crime, not creating an atmosphere that would tend to falsely lead a prospective
criminal into an unlawful act. Policy and procedures are designed to not
only guide the department in its everyday operations, but also to inform
the public as to the legality of said procedures and policies; therefore,
instilling the public’s support for their public servants.
KATHLEEN COLOMBO v. MICHAEL BUFORD 935 S.W.2d 690
"§ 610.030 is limited to enforcement of the "provisions of
§§ 610.100 to 610.115." *fn3 These sections pertain
to arrest records only and do not include the violation alleged by appellants
here. This argument of appellants simply has no merit."
Wherefore, the plaintiff has complied with sec.
610.023 RSMo in his request for access to public records and has been
summarily denied. The Plaintiff must request that this Honorable Court
Order said documents produced for viewing and that appropriate sanctions
as provided in sec. 610.027.3 RSMo be enacted upon the respondent.
Further, pursuant to 610.027.3 RSMo that all costs and attorney’s
fees are granted to the plaintiff in the amount of $500.00 dollars, and
relief pursuant to RSMo 527.080. Plaintiff also requests that a
copy of the policy and procedures and/or Standard Operating Guidelines
for the Springfield Police Department be presented to the plaintiff in
the standard computer format with the fee to be set by the statutes of
the State of Missouri.
Lee Allen Martin
309 N Jefferson Ave., suite 220
Springfield, Mo. 65806
CERTIFICATE OF SERVICE
I, Lee Allen Martin, do hereby swear and affirm that
one true and accurate copy of the foregoing has been mailed, via prepaid
first class mail, to Bob Sommers, Busch Municipal Building 840 Boonville
Springfield Missouri 65802 on this date 23rd day of March 1999.
So certified: _____________________________
Lee Allen Martin
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