PEOPLE'S LEGAL FRONT

IN THE 31^ST JUDICIAL CIRCUIT FOR

THE STATE OF MISSOURI, COUNTY OF GREENE

Lee Allen Martin, plaintiff                                                      )
Pro Se                                                                                       )
                    V                                                                             ) Case #: 198CC4528
Brenda Cirtin, defendant                                                       )
Custodian of Records                                                             )
City of Springfield                                                                    )
Robert Sommers, City Attorney                                             )

BRIEF

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 be forthcoming.

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 of Springfield.

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.

LEGAL AUTHORITIES

1. Chapter 610 of the RSMo defines the conduct of governmental bodies and the records of such.
2. 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:"
3. Section 610.010(6) RSMo defines public records as "any record, whether written or electronically stored retained by or of any public governmental body."
4. 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.
5. 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.
6. 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.

7. 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.
8. 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.""
9. 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.
10. 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.

11. 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."

ARGUMENT 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.

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.
 
 

Respectfully Submitted,
 

Lee Allen Martin
309 N Jefferson Ave., suite 220
Springfield, Mo. 65806
Phone #2
e-mail lee@ctyme.com

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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