                IN THE MISSOURI COURT OF APPEALS
                        WESTERN DISTRICT

 AMERICAN CIVIL LIBERTIES UNION                             )
 OF MISSOURI FOUNDATION, et al.,                            )
                                                            )
                                       Respondents,         )
                                                            )    WD79619
 v.                                                         )
                                                            )    OPINION FILED:
                                                            )    November 22, 2016
 MISSOURI DEPARTMENT OF                                     )
 CORRECTIONS,                                               )
                                                            )
                                           Appellant.       )


                      Appeal from the Circuit Court of Cole County, Missouri
                               The Honorable Jon E. Beetem, Judge

                         Before Division IV: Mark D. Pfeiffer, Chief Judge, and
                             Karen King Mitchell and Gary D. Witt, Judges

       The Missouri Department of Corrections (“Department”) appeals the judgment of the

Circuit Court of Cole County, Missouri (“trial court”), in favor of the American Civil Liberties

Union of Missouri (“ACLU”) which imposed a $500 penalty against the Department and awarded

attorney’s fees and costs of $5,145 to the ACLU, pursuant to section 610.0271 and, specifically,

due to the trial court’s conclusion that the Department knowingly violated the Missouri Sunshine




       1
           All statutory references are to the Revised Statutes of Missouri 2000, as supplemented.
Law. On appeal, the Department argues that: (1) the trial court erroneously applied a strict liability

standard in the imposition of fines, attorney’s fees, and costs; and (2) there is no substantial

evidence to support the trial court’s judgment. We affirm.

                                      Factual and Procedural Background

        On May 2, 2014, relevant to this appeal, the ACLU requested public records from the

Department related to individuals not employed by the Department who had applied to witness

executions for a twelve-month period. The representative of the Department designated to respond

to all records requests related to executions was the Department’s deputy general counsel,

Mr. Matt Briesacher (“Briesacher”). Briesacher testified at trial that he had been working on

Sunshine Law requests in his role with the Department for five years, and responding to such

requests was “a substantial part of [his] duties” during the past two years.

        Briesacher responded to the ACLU’s request on May 6, 2014, stating that responsive

records would be provided within three weeks. In July 2014, the Department produced heavily

redacted records in response to the ACLU’s request. The redacted information included witness

applicants’ responses to questions regarding contact information, place of employment, social

security numbers, and criminal history. After the ACLU requested that the Department explain its

authority for redacting the witness applications, Briesacher cited to section 610.0352 as authority

for redacting social security numbers from the witness applications and section 610.021(14)3 as

his authority for redacting all other personal information of the applicants, specifically noting a

concern for “the applicants’ right to privacy.”




        2
          The parties do not dispute that section 610.035 specifically authorizes the redaction of social security
numbers in a Sunshine Law request such as the one in question.
        3
          Section 610.021(14) authorizes a public governmental body to exclude from records production “[r]ecords
which are protected from disclosure by law.”


                                                        2
       On September 2, 2014, the ACLU filed suit against the Department, seeking to compel the

Department to disclose the records without redactions (except for social security numbers), and

also alleging that the Department’s failure to do so from the outset was a “knowing or purposeful

violation of the Sunshine Law.” A trial was scheduled for July 24, 2015.

       Two days before the trial, over a year after the initial requests and months after many

execution witness applicants had consented to producing the information requested by the ACLU,

the Department produced additional records, some of which were still heavily redacted and some

of which were newly un-redacted.

       The trial court entered judgment in favor of the ACLU. In its judgment, the trial court

explained that “[t]he case law is clear that reliance on [section 610.021(14)] requires a statute

which protects the information, not some ‘penumbral’ right [to privacy].” The trial court also

noted that the Department’s “right to privacy” redaction explanation appeared to the trial court to

be nothing more than “an afterthought,” and consequently, the trial court placed no credibility in

the Department’s attempt to belatedly and purportedly rely upon this basis for redacting

information—information that the trial court noted was “[t]he type of information . . . released by

the Department of Revenue Driver’s License Bureau on a daily basis and is available online from

Casenet to the general public.” The trial court also found it coincidental that the Department was

producing a large quantity of previously redacted records forty-eight hours prior to trial; ultimately

concluding: “The [trial court] finds, by a preponderance of the evidence, that the failure of [the

Department] to produce the records . . . to be a knowing violation of the Sunshine Law.”

Accordingly, as part of its judgment, the trial court imposed a fine of $500 plus attorney’s fees and

costs in the amount of $5,145.




                                                  3
       This appeal follows. In its appeal, the Department does not appeal the trial court’s finding

that it violated the Sunshine Law; instead, the Department appeals the trial court’s conclusion that

the violation was a “knowing” violation of the Sunshine law.

                                       Standard of Review

       What constitutes a knowing or purposeful violation of the Sunshine Law is a
       question of law. Section 610.027 expressly states that a knowing violation occurs
       when the public entity “has knowingly violated sections 610.010 to 610.026.”
       § 610.027.3. To prove a “knowing” violation, a party, therefore, must do more
       than show that the [public entity] knew that it was not producing the report; as this
       Court noted in Strake v. Robinwood West Cmty. Improvement Dist., 473 S.W.3d
       642, 645 (Mo. banc 2015), section 610.027.2 requires proof that the public entity
       knew that its failure to produce the report violated the Sunshine Law. § 610.027.3.
       The standard required to prove a “purposeful” violation under section 610.027 is
       greater—the party must show that the defendant “purposefully violated
       section 610.010 to 610.026”, which this Court has defined as acting with “a
       ‘conscious design, intent, or plan’ to violate the law and d[id] so ‘with awareness
       of the probable consequences.’” Spradlin v. City of Fulton, 982 S.W.2d 255, 262
       (Mo. banc 1998).

       ....

       Whether the conduct of the [public entity] brings it within the scope of the statutory
       definitions of knowing or purposeful conduct is a question of fact. State v. Selman,
       433 S.W.2d 572, 575 (Mo. 1968) (question of intent is fact question for the jury).
       Such factual determinations are reviewed by this Court under the standard set out
       in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Under that standard, it
       was up to the trial court, as fact finder, to determine whether the [public entity’s]
       officials’ conduct was knowing or purposeful as those terms are used in
       section 610.027 when the [public entity] declined to release the [requested public
       records]. See, e.g., Spradlin, 982 S.W.2d at 263 (the record supported trial court’s
       decision there was no purposeful violation of the Sunshine Law); R.L. Polk & Co.
       v. Missouri Dep’t of Revenue, 309 S.W.3d 881, 884, 887 (Mo. App. 2010) (same).

Laut v. City of Arnold, 491 S.W.3d 191, 193, 196-97 (Mo. banc 2016) (footnote omitted).

                                             Analysis

   I. The correct legal standard for § 610.027 findings

       On appeal, the Department does not dispute the trial court’s judgment, which concluded

that the Department violated the Sunshine Law by redacting the requested documents. Rather, the



                                                 4
Department argues in Point I that the trial court erred in finding that its violation of the Sunshine

Law was “knowing” as that term is defined in section 610.027.3. Specifically, the Department

contends that the trial court erroneously applied a strict liability standard to assess the

Department’s “knowing” violation of the Sunshine Law. We disagree.

       Section 610.027.3 states:

       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.

(Emphasis added.)

       “[S]ection 610.027.3 does not impose strict liability.         Rather, it requires that the

governmental body knowingly violated the Sunshine Law, not merely that it knowingly failed to

produce the document, for the trial court to impose a civil penalty or assess costs and attorney’s

fees.” Laut, 491 S.W.3d at 199.

       Here, the trial court did not conclude that the Department merely knowingly failed to

produce the records; rather, the trial court expressly concluded in its judgment that “the failure of

[the Department] to produce the records . . . [was] a knowing violation of the Sunshine Law.”

Further, the trial court did not apply a strict liability standard for imposing its section 610.027.3

civil penalty and an award of costs and attorney’s fees; instead, the trial court’s judgment contains

numerous references to facts reflecting the trial court’s weighing of the evidence to support its

ultimate conclusion that the Department’s violation was “knowing,” expressly noted in the

judgment by the trial court as “by a preponderance of the evidence.”



                                                 5
       On appeal, we presume that the trial court “properly considered the relevant portions of the

Sunshine Law in rendering its decision as long as that presumption is not rebutted by the record.”

Am. Family Mut. Ins. Co. v. Mo. Dep’t of Ins., 169 S.W.3d 905, 913-14 (Mo. App. W.D. 2005).

The record before us presents no basis to rebut a presumption that the trial court knew and properly

applied the correct legal standard (i.e., “knowing” and not strict liability). To the contrary, the

record demonstrates that the trial court applied the correct legal standard in its findings related to

section 610.027.

       Point I is denied.

   II. Substantial evidence to support the trial court’s judgment

       In Point II, the Department argues that the trial court’s judgment concluding that it

knowingly violated the Sunshine Law was not supported by substantial evidence.

       A trial court’s judgment is not supported by substantial evidence when there is no
       evidence in the record tending to prove a fact that is necessary to sustain the circuit
       court’s judgment as a matter of law. When reviewing whether the circuit court’s
       judgment is supported by substantial evidence, appellate courts view the evidence
       in the light most favorable to the circuit court’s judgment and defer to the circuit
       court’s credibility determinations[,] . . . no contrary evidence need be considered
       on a substantial-evidence challenge . . . [and] [c]ircuit courts are free to believe any,
       all, or none of the evidence presented at trial.

Laut, 491 S.W.3d at 197 (internal citation and numerous internal quotations omitted).

       Here, the trial court’s judgment noted that the “clear” case precedent interpreting the

subsection relied upon by the Department (i.e., section 610.021(14)) was entirely inconsistent with

the “afterthought” position of the Department, whose representative charged with producing the

pertinent public records was an inter-agency attorney who had worked on Sunshine Law requests

on behalf of the Department for five years, and such requests were “a substantial part of [his]

duties” for the previous two years. We agree.




                                                  6
       Under Missouri law, “public records shall be open to the public for inspection and

duplication.” § 610.015. “Section 610.021 permits the closing of records, but the General

Assembly charged in § 610.011.1 that these exceptions be ‘strictly construed.’” State ex rel. Mo.

Local Gov’t Ret. Sys. v. Bill, 935 S.W.2d 659, 664 (Mo. App. W.D. 1996). “Hence, public records

must be presumed open to public inspection unless they contain information which clearly fits

within one of the exemptions set out in § 610.021.” Id. One such exemption provides that certain

records may be closed or redacted when they are “protected from disclosure by law[.]”

§ 610.021(14). “The term ‘law’ has a particular meaning in this context: It refers to statutes.”

Bill, 935 S.W.2d at 665. Thus, “[t]he mandate of § 610.015 is that public records be open to the

public for inspection and duplication unless a statute prohibits their disclosure.” Oregon Cty. R-IV

Sch. Dist. v. LeMon, 739 S.W.2d 553, 557 (Mo. App. S.D. 1987).

       Here, the import of the trial court’s judgment is that the Department understood the

mandate of case precedent such as Bill and LeMon when relying upon section 610.021(14), as the

Department did, in fact, appropriately cite to statutory authority authorizing redaction of social

security numbers from its production of records (see section 610.035). Conversely, the trial court

noted in its judgment that the Department never purported to rely upon any statutory authority for

any remaining redactions in the records requested by the ACLU. This, the judgment makes clear,

was not a coincidence.

       For example, the trial court found it no coincidence that more than one year after the ACLU

requested the records in question and two days before trial, the Department belatedly produced a

group of records with un-redacted information on some of the witness applications—even though

it had previously steadfastly maintained that it had no obligation to produce any of these records

pursuant to the same argument it made at trial. By concluding that it believed the Department’s




                                                 7
non-statutory reliance upon a “penumbral right to privacy” to redact information4 (under the

umbrella of section 610.021(14)) was nothing more than an “afterthought” (even noting that the

information requested was “[t]he type of information . . . released by the Department of Revenue

Driver’s License Bureau on a daily basis and is available online from Casenet to the general

public”), the trial court noted its disdain for, and lack of credibility in, the Department’s

explanation of its conduct.

         In response to this evidence in the record, the Department ignores our standard of review

and argues that there was evidence contrary to the judgment in that the Department’s

representative, Briesacher, testified that he didn’t “know” he was violating the Sunshine Law when

he ordered the redactions in the records. Simply put, the trial court was under no obligation to

believe Briesacher, and it is clear that the trial court did not; we must “defer to the circuit court’s

credibility determinations.” Laut, 491 S.W.3d at 197 (internal quotation omitted).

         “It was up to the trial court to weigh the evidence and resolve the factual question whether

the [Department’s] conduct fell within the definitions of knowing or purposeful violation under

section 610.027.” Id. at 193. Here, the trial court did just that, and there is substantial evidence in

the record supporting the trial court’s judgment as to its section 610.027 findings. As in Laut, the

question before us is not whether the evidence could support a determination that the Department’s




         4
             As our ruling today states, the clear precedent interpreting section 610.021(14) (records may be redacted
when they are “protected from disclosure by law”) is that “[t]he term ‘law’ has a particular meaning in this context:
It refers to statutes.” State ex rel. Mo. Local Gov’t Ret. Sys. v. Bill, 935 S.W.2d 659, 665 (Mo. App. W.D. 1996). But,
even as to the Department’s “afterthought” argument that the section 610.021(14) protection from disclosure “by law”
includes a non-statutory right to privacy, our United States Supreme Court “consistently has held that a person has no
legitimate expectation of privacy in information he voluntarily turns over to third parties.” Smith v. Maryland, 442
U.S. 735, 743-44 (1979). Here, all of the information contained within the records at issue was voluntarily provided
to a public entity by individuals not otherwise required to be present at executions, but who desired to be present as a
witness to an execution (and at the time the witness applicants submitted their personal information to the Department,
none of these persons even attempted to request that their personal information remain private in any way). It is
disingenuous to suggest under these circumstances that there was any purported reasonable expectation of privacy
relating to the information at issue in this public records request.


                                                           8
failure to produce requested records was not “knowing,” but instead, “whether the trial court

committed reversible error in weighing the evidence, making credibility determinations, and

determining to the contrary.” Id. at 202. We conclude that it did not.

       Point II is denied.

                                           Conclusion

       For the reasons set forth above, we conclude that the trial court did not err in entering

judgment against the Department on the question of civil penalties, costs, and attorney fees. The

trial court’s judgment is affirmed.




                                             Mark D. Pfeiffer, Chief Judge

Karen King Mitchell and Gary D. Witt, Judges, concur.




                                                9
