Aaron M. Malin v. Cole County Prosecuting Attorney

IN THE MISSOURI COURT OF APPEALS
WESTERN DISTRICT

AARON M. MALIN, )
)
Respondent, )
)
WD81583
v. )
)
OPINION FILED:
)
January 15, 2019
COLE COUNTY PROSECUTING )
ATTORNEY, )
)
Appellant. )

Appeal from the Circuit Court of Cole County, Missouri
The Honorable Patricia S. Joyce, Judge

Before Division Two: Alok Ahuja, Presiding Judge, and
Thomas H. Newton and Mark D. Pfeiffer, Judges

In this Sunshine Law request case, the Cole County Prosecuting Attorney’s Office

(“Prosecutor”) appeals the judgment of the Circuit Court of Cole County, Missouri (“circuit

court”), in favor of Mr. Aaron Malin (“Malin”), ordering the production of certain records the

Prosecutor argues are not open to the public and imposing a $12,100 civil penalty against the

Prosecutor that the Prosecutor argues is excessive. We affirm.
 Sunshine Law

Missouri’s Sunshine Law is contained in chapter 610 of the Missouri Revised Statutes

and dictates that state public policy is “that meetings, records, votes, actions, and deliberations of

public governmental bodies be open to the public unless otherwise provided by law.”

§ 610.011.1.1 The legislature has clearly expressed its intent that the Sunshine Law “shall be

liberally construed and [its] exceptions strictly construed to promote this public policy.” Id.

“Except as otherwise provided by law, . . . 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 . . . .”

§ 610.011.2.

Here, there is no dispute that the Prosecutor is a “public governmental body” as defined

in section 610.010(4): “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[.]” There is

also no question that records retained by the Prosecutor constitute “public records” as defined in

section 610.010(6): “any record, whether written or electronically stored, retained by or of any

public governmental body[.]” Section 610.022.5 provides that “[p]ublic records shall be

presumed to be open unless otherwise exempt pursuant to the provisions of this chapter.”

Section 610.023.3 requires:

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
records are requested in a certain format, the public body shall provide the records
in the requested format, if such format is available. 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.
1
All statutory references are to the REVISED STATUTES OF MISSOURI 2000, as supplemented.

2
In the event a public governmental body denies a request, a written statement of the grounds for

such denial must be provided, which “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.” § 610.023.4. In the case of a

public record containing both “material which is not exempt from disclosure as well as material

which is exempt from disclosure, the public governmental body shall separate the exempt and

nonexempt material and make the nonexempt material available for examination and copying.”

§ 610.024.1.

Where a public governmental body “knowingly” fails to comply with these mandatory

steps, section 610.027.3 provides the possible consequences, stating:

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. If the court
finds that there is a knowing violation of sections 610.010 to 610.026, the court
may order the payment by such body or member of all costs and reasonable
attorney 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.

Where a public governmental body “purposely” refuses to comport with the requirements

of the Sunshine Law, section 610.027.4 provides the consequences, stating:

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. If the court
finds that there was a purposeful violation of sections 610.010 to 610.026, then
the court shall order the payment by such body or member of all costs and
reasonable attorney fees to any party successfully establishing such 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

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 governmental body or member of a public governmental body has violated
sections 610.010 to 610.026 previously.

Factual and Procedural Background

On three separate occasions from April 2015 through October 2015, Malin requested

from the Prosecutor: (1) correspondence between the Prosecutor and a drug task force; (2)

indictments by the Prosecutor relating to narcotic sales in public housing from July 2014 to the

present; and, (3) Sunshine Law requests to the Prosecutor and any responses thereto from

January 2015 to the present. Each Sunshine Law request mirrored the Sunshine Law and stated

that the records were to be provided without redactions or with only redactions permitted by law,

and that if any part of the request was denied, that the specific exceptions relied upon for each

denial be listed. On each occasion, the Prosecutor responded with general objections to the

records requests, sometimes untimely, and indicated that the request was too burdensome and the

task of searching for any responsive documents simply would not be performed; further, the

Prosecutor stated his conclusions “without confirming or denying the existence of records you

requested.”

Subsequently, Malin hired an attorney, and the attorney wrote to the Prosecutor and

explained the untimely and statutorily deficient form of the Prosecutor’s Sunshine Law

responses; the Prosecutor ignored the letters from Malin’s attorney. Malin’s attorney then filed

the instant Sunshine Law suit, and only then, after many months of protracted litigation, did the

Prosecutor provide partial responses to some of the requests, again refusing to note the

identification of other records responsive to the Sunshine Law requests and failing to provide

specific statutory reasons for refusing to search for or disclose such records.

Malin filed a motion for summary judgment seeking production of all records responsive

to the Sunshine Law requests and further seeking civil penalties against the Prosecutor for the

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blatant disregard of the requirements of Missouri’s Sunshine Law. The motion was ruled in

favor of Malin. In its judgment, the circuit court noted with disdain that the Prosecutor’s

admitted position was that the Prosecutor “would not even conduct a search for responsive

documents because, as he asserted, every record retained by his office was exempted from

disclosure under the Sunshine Law.” The circuit court’s judgment found the Prosecutor’s

conduct to be undisputedly purposeful, knowing, dilatory, and non-responsive to the

requirements of Missouri’s Sunshine Law. Specifically, the circuit court’s judgment decreed:

1. Defendant knowingly and purposely violated the Sunshine Law.

2. Defendant must search for and produce all open records responsive to
Plaintiff’s requests, which includes the following:

a) any correspondence or communication between the Office of the
Prosecuting Attorney of Cole County (or its associates/employees) and the
MUSTANG drug task force (or its associates/employees);

b) any indictments handed down in Cole County between July 1, 2014 and the
present, limited to indictments for selling narcotics in public housing; and

c) any Sunshine Law (or open records) requests received by the Cole County
Prosecutor’s Office, as well as any responses provided, between January 1,
2015 and the present.

3. Defendant is ordered to pay a $12,100 civil penalty to Plaintiff.

4. Defendant is further ordered to pay Plaintiff’s costs and reasonable attorneys’
fees in the amount of $24,070.00. . . .

On appeal, the Prosecutor does not challenge that he knowingly and purposely violated the

Sunshine Law2 as to the second and third categories of records ordered to be produced; the

Prosecutor does not challenge the award of costs and reasonable attorney’s fees in the amount of

2
In his reply brief, the Prosecutor states, “Appellant Prosecutor has clearly failed to scrupulously follow
the Sunshine Law, a reality that Appellant Prosecutor has candidly conceded in the opening brief.” Of note, the
Prosecutor at the time of the 2015 Sunshine Law requests (no longer the Prosecutor as of January 1, 2019) had
practiced law since 1984, had served as a municipal judge for over seven years in his career, and had even taught
state agency officials about their responsibilities regarding the Sunshine Law and responding to requests for public
records. Hence, we agree with the circuit court and the Prosecutor that there is no excuse for the purposeful and
knowing violations of the Sunshine Law in the present case.

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$24,070; the Prosecutor does not challenge the award of a section 610.027 civil penalty. Instead,

on appeal, the Prosecutor only challenges the judgment’s order of the production of certain

records responsive to the first category of records requested (drug task force communications)

and only challenges the amount of the civil penalty awarded to Malin.

Standard of Review

“When considering appeals from summary judgments, the Court will review the record in

the light most favorable to the party against whom judgment was entered.” ITT Commercial Fin.

Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). “Because the

circuit court’s judgment is based on the record submitted and the law, we need not defer to the

circuit court’s order granting summary judgment.” Reverse Mortg. Sols., Inc. v. Estate of

Hunter, 479 S.W.3d 662, 666 (Mo. App. W.D. 2015). We review the grant of a summary

judgment de novo because whether it was properly granted is purely an issue of law. Id.

I.

In Point I, the Prosecutor does not dispute that his conduct constituted a knowing,

purposeful violation of the Sunshine Law; rather, the Prosecutor’s argument on appeal is

confined to whether the circuit court’s summary judgment was erroneous because:

law enforcement record exemptions designed to protect public safety in the
Sunshine Law at §610.100, RSMo. . . . apply to the communications between the
Appellant Prosecutor and [MUSTANG drug task force and its employees and
associates] because . . . the public disclosure of information contained in the
requested records has the potential to endanger the personal safety of officers and
undermine the effectiveness of their investigations.

The Prosecutor’s argument reflects a misunderstanding of the circuit court’s judgment. The

judgment has not prevented the Prosecutor from withholding records that are not open records.

The circuit court ordered the Prosecutor to “search for and produce all open records

responsive to Plaintiff’s requests, which includes the following: a) any correspondence or

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communication between the Office of the Prosecuting Attorney of Cole County (or its

associates/employees) and the MUSTANG drug task force (or its associates/employees)[.]”

(Emphasis added.) A careful reading of this ruling demonstrates that, if a thorough search for

responsive records and analysis of those records reveals that any portion of them contains

information “that is reasonably likely to pose a clear and present danger to the safety of any

victim, witness, undercover officer, or other person; or jeopardize a criminal investigation,”

which is thus entitled to protection from disclosure pursuant to section 610.100.3, the judgment

does not mandate their disclosure. The judgment specifies that only “open records” responsive

to the requests must be produced. The circuit court would not have specified “open” records in

its ruling if it was not contemplating “closure” of access to certain records that are specified in

the Sunshine Law.

That said, if the Prosecutor finds records responsive to the drug task force communication

request that the Prosecutor believes are not “open” due to the fact that such record or records

contain any information exempt from disclosure by law, the Prosecutor must “provide . . . a

written statement of the grounds for [redacting that portion of the record or refusing to provide

the record]. Such statement shall cite the specific provision of law under which access is

denied[.]” § 610.023.4 (emphasis added). See also § 610.024.1. In other words, it is implicit in

the language of the judgment that the Prosecutor must search for and identify all records

responsive to the Sunshine Law request, and if the Prosecutor believes that certain responsive

records are not open for a specific statutory reason, then the Prosecutor must produce an

objection log to Malin at which point Malin would have the opportunity to seek a ruling from the

circuit court compelling production of the records after in camera inspection of any disputed

records. “‘[C]ourts have inherent power to enforce their own judgments and should see to it that

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such judgments are enforced when they are called upon to do so.’” McLean v. First Horizon

Home Loan Corp., 277 S.W.3d 872, 876 (Mo. App. W.D. 2009) (quoting SD Invs., Inc. v.

Michael-Paul, L.L.C., 157 S.W.3d 782, 786 (Mo. App. W.D. 2005)).

Point I is denied.

II.

In Point II, the Prosecutor argues that the circuit court’s judgment assessing a $12,100

penalty against the Prosecutor violated the $5,000 limit placed on such penalties by

section 610.027. He urges that he is entitled to the benefit of a strict construction of

section 610.027 and application of the rule of lenity, which he asserts precludes the imposition of

multiple penalties that cumulatively exceed $5,000.

This argument was not presented to the circuit court, and thus it is not preserved for our

review on appeal. Malin’s motion for summary judgment requested that the circuit court impose

a civil penalty against the Prosecutor for the Prosecutor’s multiple purposeful and knowing

violations of Missouri’s Sunshine Law. Malin’s motion argued that there were multiple distinct

violations of the law and requested penalty amounts for each violation, and specifically requested

a total penalty of $12,100. In response, the Prosecutor made no argument regarding the propriety

of multiple penalties for multiple violations under the Sunshine Law; rather, his argument was

that no monetary penalty should be applied because Malin filed the lawsuit against the

Prosecutor in his “official capacity,” rather than in his individual capacity, and thus “fail[ed] to

state actionable claims for monetary relief.” “‘An appellant’s failure to preserve an issue at the

trial court waives the issue, and it is not reviewable on appeal.’” Kerr v. Mo. Veterans Comm’n,

537 S.W.3d 865, 880 (Mo. App. W.D. 2017) (quoting Ryan v. Maddox, 112 S.W.3d 476, 479

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(Mo. App. W.D. 2003)). The Prosecutor has not sought plain error review, nor would we be

inclined to grant it if it had been requested.3

Point II is denied.

Conclusion

The trial court’s judgment is affirmed, and the Prosecutor must comply with the judgment

in a manner consistent with our ruling today.4

/s/ Mark D. Pfeiffer
Mark D. Pfeiffer, Judge

Alok Ahuja, Presiding Judge, and Thomas H. Newton, Judge, concur.

3
Ex gratia, we note that the Sunshine Law provides that: “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.” § 610.027.4. The plain language of the statute connects the penalty of up to
five thousand dollars to the finding of a single purposeful violation of the Sunshine Law. Here, the circuit court
made findings that the Prosecutor committed multiple, distinct violations of the Sunshine Law, outright refusing to
search, adequately respond to, or fulfill in any manner at least three separate Sunshine Law requests from Malin.
Thus, even had the Prosecutor adequately preserved the issue for our review, it would fail on the merits.
4
Malin filed a motion for attorney fees on appeal which we took with the case. “In general, Missouri
follows the American Rule, which requires that litigants bear their own attorney’s fees unless otherwise authorized
by statute.” Soto v. Costco Wholesale Corp., 502 S.W.3d 38, 58 (Mo. App. W.D. 2016). However, “[a]ttorney’s
fees may be recovered by a party when allowed by statute.” Id. at 57. Section 610.027.4 authorizes a court to
award, “all costs and reasonable attorney fees to any party successfully establishing” a purposeful violation of the
Sunshine Law. Because we are affirming the judgment in favor of Malin ruling that the Prosecutor committed
multiple purposeful violations of the Sunshine Law, Malin’s motion for costs and attorney fees on appeal is granted.
“Although appellate courts have authority to allow and fix the amount of attorney’s fees on appeal, we exercise this
power with caution, believing in most cases that the trial court is better equipped to hear evidence and argument on
this issue and determine the reasonableness of the fee requested.” Turner v. Kansas City Pub. Sch., 488 S.W.3d 719,
726 (Mo. App. W.D. 2016) (internal quotation marks omitted). Accordingly, we remand to the trial court to
determine the reasonableness of Malin’s attorney fees on appeal and enter an appropriate award.

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