               In the Missouri Court of Appeals
                                   Western District


NATIONAL COUNCIL OF TEACHERS     )
QUALITY, INC.,                   )
                       Appellant,)
v.                               )                      WD76785
                                 )
CURATORS OF THE UNIVERSITY OF    )                      FILED: August 26, 2014
MISSOURI,                        )
                     Respondent. )



       APPEAL FROM THE CIRCUIT COURT OF BOONE COUNTY
                THE HONORABLE KEVIN CRANE, JUDGE

      BEFORE DIVISION FOUR: JAMES E. WELSH, CHIEF JUDGE, PRESIDING,
      LISA WHITE HARDWICK, JUDGE AND KEVIN HARRELL, SPECIAL JUDGE

      The National Council for Teacher Quality (the "NCTQ") brought this action

against the Curators of the University of Missouri (the "University") to compel the

University to disclose course syllabi under Missouri's Sunshine Law. The circuit court

found for the University, determining that the requested syllabi were exempted from

disclosure under the Sunshine Law by the Federal Copyright Act, and this appeal

followed. For reasons explained herein, the judgment of the circuit court is affirmed.



                           FACTUAL AND PROCEDURAL HISTORY
        The NCTQ is a private non-profit "policy and research organization that's working

towards making sure that every child has an effective teacher." On June 29, 2012, the

NCTQ submitted a request to the University, pursuant to the Sunshine Law, § 610.010

et seq.,1 asking the University to produce various records, including "syllabi that

students actually receive from their professors." In response, the University disclosed

some of the requested documents but withheld the requested syllabi on the basis that

the syllabi were exempt from disclosure under the Sunshine Law.

        On October 1, 2012, the NCTQ filed a two-count Petition against the University.

Count I asked the court to compel production of the course syllabi. Count II asked the

court to impose civil penalties and attorneys' fees upon the University for knowingly and

purposefully violating its obligations to provide access to public records, pursuant to

Section 610.027.

        On June 21, 2013, the circuit court held a hearing at which both parties

presented evidence. On July 17, 2013, the court entered its Order and Judgment,

finding for the University and, thus, denying the NCTQ access to the requested syllabi.

The NCTQ appeals.

        Additional facts will be provided as necessary during our analysis of the NCTQ's

points on appeal.



                                       STANDARD OF REVIEW

        On review of this court tried case, we must affirm the circuit court's judgment

unless it is not supported by substantial evidence, it is against the weight of the

1
 All statutory references are to the Revised Statutes of Missouri 2000, as updated by the 2013
Cumulative Supplement, unless otherwise indicated.


                                                   2
evidence, or it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d

30, 32 (Mo. banc 1976). We view the evidence and inferences in a light most favorable

to the judgment and disregard all contrary evidence. Id. We must defer to the circuit

court's determinations of fact and witness credibility. Id.

                                         ANALYSIS

       "Missouri's Sunshine Law, Chapter 610, reflects the state's commitment to

openness in government." News-Press and Gazette Co. v. Cathcart, 974 S.W.2d 576,

578 (Mo. App. 1998). "The Sunshine Law is to be liberally construed and exceptions

strictly construed to promote open government." Id. Under the Sunshine Law, records

of public governmental bodies shall be open to the public unless otherwise provided by

law. §§ 610.011, 610.023.2. "A public record is defined generally in the Sunshine Law

as including any record retained by any public governmental body." City of Springfield

v. Events Publ'g Co., 951 S.W.2d 366, 371 (Mo. App. 1997) (citing § 610.010(6)).

Section 610.021 provides exceptions to open records, listing instances where a public

governmental body is authorized to "close" its records to the public. Such exceptions,

however, must be strictly construed. § 610.011. "'[P]ublic 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.'" City of Springfield, 951 S.W.2d at 371 (quoting

State ex rel. Mo. Local Gov't Ret. Sys. v. Bill, 935 S.W.2d 659, 664 (Mo. App. 1996)).

       Under Section 610.027.2, once a party seeking judicial enforcement of the

Sunshine Law demonstrates that the body in question is subject to the Sunshine Law

and has denied access to a record, the burden shifts to the governmental body to

demonstrate that the record falls within one of the exceptions to the rule of disclosure.



                                             3
In the instant case, the University is a "public governmental body" subject to the

Sunshine Law. § 610.010(4)(a). Moreover, the University admitted that it withheld the

requested syllabi from disclosure. Thus, the burden was on the University to

demonstrate compliance with the Sunshine Law.

        At trial, the University argued that the subject syllabi fell within Section

610.021(14), which authorizes a public governmental body to close "[r]ecords which are

protected from disclosure by law." Specifically, the University's position was that its

faculty members hold copyright ownership in their syllabi and, thus, that the syllabi's

disclosure was protected by the Federal Copyright Act. 17 U.S.C. § 106(1), (3) (2012)

(The Federal Copyright Act provides copyright owners the "exclusive rights to do and to

authorize" reproduction and distribution of their copyrighted works.). Upon review of the

evidence presented, the circuit court entered judgment, finding that the University "met

its burden of persuasion to demonstrate compliance with" the Sunshine Law.




Points I & IV — The Federal Copyright Act's Applicability to Section 610.021(14)

        In its first point, the NCTQ contends that the circuit court erred in entering

judgment in favor of the University because the NCTQ "pleaded and proved that it was

legally entitled to copies of [the University's classroom course syllabi]."2 The NCTQ

does not dispute that the faculty authors who wrote the requested syllabi own the

2
  In its first point, the NCTQ also contends that the circuit court erred in entering judgment in favor of the
University because the NCTQ "pleaded and proved that it was . . . entitled to recover costs and attorneys'
fees." See § 610.027. Given our ultimate disposition in favor of the University, we need not address this
issue.


                                                      4
copyright to those works.3 Rather, the NCTQ asserts that a "document is [not]

'protected from disclosure by law' by the mere fact that it is copyrighted."

        First, the NCTQ relies heavily on the fact that "no Missouri case has ever

suggested" that the Federal Copyright Act exempts copyrighted work from Sunshine

disclosure. The absence of case law, however, is the result of this issue never having

been before the appellate courts of this state. The fact that our courts have not

addressed the interplay between the Federal Copyright Act and the Sunshine Law does

not mean that the Copyright Act has no applicability to the instant case; rather, it simply

means that this is a case of first impression.

        Second, at oral argument, the NCTQ cited a handful of cases from other

jurisdictions for the proposition that the Federal Copyright Act "has never" been used as

a "shield" to deny requested documents in "any open records case." We find the

NCTQ's reliance on such authorities unpersuasive. The courts of this state are not

bound by decisions of foreign jurisdictions. Moreover, none of the cases cited by the

NCTQ hold that the Federal Copyright Act has no applicability in open records cases.

Rather, the cases cited by the NCTQ actually recognize that the Federal Copyright Act

can affect disclosure of copyrighted materials in an open records request. Nat'l Council

on Teacher Quality v. Minn. St. Colleges and Universities, 837 N.W.2d 314, 318 (Minn.

App. 2013) ("[Minnesota's open records law] states that 'comprehensive accessibility

shall be allowed to researchers . . . except as otherwise expressly provided by law.'


3
  The University maintains rules concerning copyright ownership in materials developed by faculty in their
roles as teachers. Those rules are incorporated in faculty members' terms of employment. Under the
copyright rules, materials that faculty create as part of their coursework, including syllabi, belong to the
faculty. Additionally, when faculty share syllabi with the University -- for purposes such as accreditation,
curriculum review, and promotion and tenure -- copyright ownership of syllabi is not transferred to the
University.

                                                     5
The copyright act is such a law[.]" (citation omitted) (quoting Minn. Stat. § 13.03.2(b)));

Zellner v. Cedarburg Sch. Dist., 731 N.W.2d 240, 295 n.3 & 299 (Wis. 2007)

(Recognizing Wisconsin's express statutory exception to its open records law for

"materials to which access is limited by copyright" (quoting Wis. Stat. § 19.32(2))); State

ex rel. Rea v. Ohio Dept. of Educ., 692 N.E.2d 596, 601–02 (Ohio 1998) (discussing the

limited situations in which the Federal Copyright Act would not prevent disclosure under

the open records law); Lindberg v. Cnty. of Kitsap, 948 P.2d 805, 812–13 (same).4

        Third, the NCTQ inaccurately characterizes the University's copyright argument

as one that is premised upon confidentiality concerns. Thereupon, the NCTQ asserts:

"Based on the widespread uses of syllabi in the educational community . . . [the

University's argument] is absurd." The University's position, however, is unquestionably

rooted in copyright protection, which in no way pertains to confidentiality, but rather

protects against unauthorized copying and distribution.

        Fourth, and finally, the NCTQ puts great emphasis on the Sunshine Law's policy

in favor of openness in government and its instruction to strictly construe its exemptions.

See § 610.011. Under its policy argument, the NCTQ asserts: "Because federal

copyright law does not address disclosures pursuant to Sunshine Law requests, there is

no need to conduct any federal copyright analysis regarding this case." Thus, the

NCTQ suggests that, because the Federal Copyright Act does not expressly address

the disclosure of copyrighted material under an open records law, it does not have any

applicability to Section 610.021(14). Stated differently, the NCTQ contends that the

"protected from disclosure by law" language of Section 610.021(14) should be strictly


4
   The NCTQ also cites to Jartech, Inc. v. Clancy, 666 F.2d 403 (9th Cir. 1982). However, Jartech is
irrelevant to the instant point as it does not address disclosure under an open records law.

                                                    6
construed to require the subject "law" to expressly prohibit disclosure under open

records laws. This construction of Section 610.021(14) would be unreasonably strict

and narrow, given the plain language of the statute. See, e.g., Am. Family Mut. Ins. Co.

v. Mo. Dep't of Ins, 169 S.W.3d 905, 909–13 (Mo. App. 2005) (holding requested data to

be a trade secret under the Missouri Uniform Trade Secret Act and, thus, exempt from

disclosure under the Sunshine Law, where the Trade Secret Act makes no mention of

open records laws).

        While the specific arguments the NCTQ raises under its first point are

undoubtedly flawed, as outlined above, a "big picture" view of the NCTQ's arguments

reveals a more noteworthy issue: Does the protection against unauthorized

reproduction and distribution (Federal Copyright Act) qualify as a protection against

disclosure (Section 610.021(14))?

        The NCTQ's position on this issue appears to be that, because reproduction and

distribution do not equate to disclosure, copyrighted work is not exempt from disclosure

under the Sunshine Law. Review of the relevant case law, however, reveals that the

test for determining whether the "protected from disclosure from law" exemption applies

is not whether the subject law explicitly deals with disclosure. Rather, the proper inquiry

is whether disclosing records pursuant to the Sunshine Law would violate the subject

law.5

        For example, in North Kansas City Hospital Board of Trustees v. St. Luke's

Northland Hospital, 984 S.W.2d 113 (Mo. App. 1998), the circuit court held that

5
  Indeed, Section 610.021(14) "may be essentially redundant." 20A Mo. Prac., Administrative Practice &
Procedure § 15:9 (4th ed.). "Usefully, the presence of this exception eliminates the need for analysis of
such questions concerning the relationship between arguably conflicting statutes." Id.



                                                    7
requested records were exempt from disclosure under Section 610.021(14) because

disclosure of the records "would violate both § 416.031.2 of Missouri's antitrust law and

15 U.S.C. §§ 1 and 2 of the Sherman Act." Id. at 119. 15 U.S.C. § 1 makes illegal

"[e]very contract . . . in restraint of trade or commerce among the several States, or with

foreign nations." Section 416.031.2 and 15 U.S.C. § 2 make it illegal "to monopolize,

attempt to monopolize, or conspire to monopolize trade or commerce" in Missouri and

among the several States.

        On appeal, this court reversed. Yet, this court's reversal was not premised upon

the fact that "protection from restraint and monopolization of trade and commerce" does

not equate to "protection from disclosure." Rather, this court's analysis turned on

whether disclosure of the requested documents would in fact violate the antitrust laws,

which we ultimately answered in the negative. St. Luke's Northland, 984 S.W.2d at 120.

        Turning to the instant case, in order to disclose the syllabi as requested by the

NCTQ, the University would have to reproduce and distribute the syllabi. Thus, while

the Federal Copyright Act does not explicitly protect against disclosure, it does protect

against the means by which the requested disclosure would be obtained. Disclosing the

syllabi to the NCTQ -- through reproduction and distribution -- would constitute a

violation of the Federal Copyright Act. Therefore, the syllabi as requested are

"protected from disclosure by [the Federal Copyright Act]." See § 610.021(14).6



6
   The situation might be different if, rather than requesting copies of the syllabi, the NCTQ requested
allowance to inspect the syllabi. See, e.g., Venetian Casino Resort, LLC v. EEOC, 530 F.3d 925, 935 n.4
(D.C. Cir. 2008) ("Disclosure is not an act of copyright infringement but reproduction is."); but see
Disabled Police Veterans Club v. Long, 279 S.W.2d 220, 223 (Mo. App. 1955) ("[T]he right to inspect
carries with it the right to make copies."); § 610.011 ("[A]ll public records of public governmental bodies
shall be open to the public for inspection and copying . . . ." (emphasis added)). However, such is not the
case before us. In its Point Relied On, the NCTQ clearly states that it is only "seeking copies" of the

                                                    8
        In reaching this conclusion, we note that, while we are the first court of this state

to address the issue at hand, our holding is consistent with Attorney General Opinion

No. 138-87, which held: "A record restricted from being copied by federal copyright law

is a record 'protected from disclosure by law' under subsection 14 of Section 610.021 to

the extent that it is protected from being copied." See Mesker Bros. Indus., Inc. v.

Leachman, 529 S.W.2d 153, 158 (Mo. 1975) ("[A]n opinion of the Attorney General is

not binding . . . but may be, and often is, persuasive.").

        We further note that, although the NCTQ requested access for the purpose of

copying the syllabi, the University's response was to close the records and deny the

request. It appears beyond dispute that the term "disclosure," as used in Section

610.021, and the terms "reproduction and distribution," as used in 17 U.S.C. § 102(a),

are distinctly different. One could certainly disclose a record without either reproducing

or distributing the same record. This is particularly true given the requirement that we

construe the Sunshine Law liberally as to the availability of records and strictly as to any

exceptions limiting availability. Construing the applicable statutes through this lens, we

conclude that NCTQ's request for access to the syllabi is not protected from disclosure

by the federal copyright statutes, which address only reproduction and copying. Thus,

the subject records should not be deemed closed. However, the University could

properly deny the NCTQ's sole request to copy the documents. Accordingly, we find no

error in the circuit court's determination that the University need not reproduce or

distribute the syllabi as requested.


subject document. Moreover, at oral argument, the NCTQ stated that it would not be satisfied with
permission to merely inspect or review the syllabi.



                                                   9
       In its Point IV, the NCTQ raises a policy argument, contending that the circuit

court's "approach to interpreting and applying the Sunshine Law . . . eviscerate[s] the

Sunshine Law and place[s] an impossible burden on government entities, requiring

them to engage in extensive copyright analysis for most sunshine requests." The

NCTQ asserts that materials requested under the Sunshine Law are almost always

copyrighted materials. As such, the NCTQ claims that if we were to adopt the circuit

court's reading of Section 610.021(14) the "government will need [ ] battalions of

intellectual property lawyers to assist with the new burden that the University's position

will foist upon the government."

       The NCTQ grossly exaggerates the potential impact, if any, of adopting the

circuit court's reading of Section 610.021(14). Attorney General Opinion No. 138-87 --

opining that the Federal Copyright Act protects records from Sunshine Disclosure -- was

published in 1987, nearly three decades ago. Thus, if the NCTQ's policy argument had

any merit, closure of records based on copyright protection should have run rampant by

now. Instead, the instant case is the first time the issue has been brought before the

courts of this state. As such, we are not persuaded that our decision today will "destroy

the workings of the Sunshine Law" and impose an unmanageable burden upon the

government, as asserted by the NCTQ.

       For all the foregoing reasons, the Federal Copyright Act exempts the requested

syllabi from Sunshine disclosure and, therefore, the circuit court did not err in entering

judgment in favor of the University. Points I and IV are denied.

Point II — The Fair Use Doctrine's Applicability to Section 610.021(14)




                                             10
       In its second point, the NCTQ contends that, even if the Federal Copyright Act

protects certain records from disclosure under the Sunshine Law, the circuit court still

erred in entering judgment in favor of the University because disclosure of the

requested syllabi would constitute "fair use."

       As stated above, the Federal Copyright Act provides copyright owners the

"exclusive rights to do and to authorize" reproduction and distribution of their

copyrighted works. 17 U.S.C. § 106(1), (3) (2012). Yet, reproduction and distribution

by a third party "for purposes such as criticism, comment, . . . scholarship, or research[ ]

is not an infringement of copyright;" rather, it is a lawful and "fair use." 17 U.S.C. § 107

(2012).

       The NCTQ raises two arguments under its Point II. First, the NCTQ argues that

there should always be a presumption that production in compliance with the Sunshine

Law constitutes fair use by the State. The NCTQ asserts that, if a requester obtains

copyrighted works through a Sunshine request and then uses it in a way that does not

constitute "fair use," then the copyright holder can sue the requester. Thus, the NCTQ

argues that "typically [the] only concern" in Sunshine Law/Copyright Act cases should

be whether the government's disclosure of records under the Sunshine Law constitutes

fair use. The NCTQ contends that the government should be presumed to engage in

fair use "whenever" it discloses records "for the limited purpose of complying with the

Sunshine Law." As an alternative argument under its second point, the NCTQ contends

that, even if "the secondary use by the party seeking information" is the proper focus of

the fair use doctrine as it applies to Section 610.021(14), the NCTQ's proposed use of

the requested syllabi constitutes fair use.



                                              11
       The NCTQ's "fair use" arguments fail. First, this court lacks the authority to

determine whether a particular use of copyrighted materials constitutes fair use, as

federal courts have "original jurisdiction of any civil action arising under [the Federal

Copyright Act]." 28 U.S.C. § 1338; see Picometry Intern. Corp. v. Freedom of Info.

Comm'n, 59 A.3d 172, 192 (Conn. 2013).

       Second, such a fair use presumption would be contrary to law. As noted by the

United States Supreme Court: "The drafters [of the Federal Copyright Act] resisted

pressures from special interest groups to create presumptive categories of fair use, but

structured the provision as an affirmative defense requiring a case-by-case analysis."

Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 561 (1985).

       Finally, the nature of the fair use doctrine renders it inapplicable to the instant

case. "Fair use is an affirmative defense" to a claim of copyright infringement.

Campbell v. Acuff-Ruse Music, Inc., 510 U.S. 569, 599 (1994). And "the burden of

proving fair use is always on the party asserting the defense." H.R. Rep. No. 102-836,

at 3 n.3 (1992); see Frontenac Bank v. T.R. Hughes, Inc., 404 S.W.3d 272, 284 (Mo.

App. 2012). Consequently, fair use "is relevant only after a copyright owner has made

out a prima facie case of infringement." H.R. Rep. No. 102-836, at 3 (1992).

       Furthermore, as a practical matter, the fair use doctrine does not work in the

context of Sunshine Law requests. A Sunshine Law request is made and must be

responded to before the actual use of the requested record occurs. And nothing in the

Sunshine Law requires a request to include the requester's actual purpose for

requesting the documents. Consequently, we agree with the University's argument that

"[i]t would be untenable as a legal and practical matter to interpret the Sunshine Law to



                                             12
require a custodian of records to make a fact intensive decision on a mixed question of

law and fact regarding future use when the custodian has no information about the use

and no means to get more information."

         Accordingly, the fair use doctrine has no applicability to the present case and,

thus, the circuit court did not err in entering judgment in favor of the University. Point II

is denied.

Point III — The University's "Standing" to Invoke Copyright Protection

         In its third point, the NCTQ contends that the circuit court erred in entering

judgment in favor of the University "because the University lacked standing to enforce

copyrights in that the copyrights to the syllabi were owned by teachers, not the

University." The NCTQ asserts that "[t]o the extent [the University] asserts that [the

Federal Copyright Act] gives faculty members the exclusive right to make copies of

course syllabi, the University is attempting to 'enforce' a property right that it denies it

owns."

         The University asserts that the NCTQ's standing argument could have some

merit "[i]f the University were trying to bring an infringement action to enforce copyrights

owned by its faculty." But, the University continues, "that is not this case." Here, the

University decided that the exclusive rights of faculty authors to authorize reproduction

and distribution meant that the syllabi were "protected from disclosure by law" within the

meaning of Section 610.021(14). Thus, the University contends that it was "simply

making the determination required by the Sunshine Law."

         We agree that the University can object to the disclosure based on copyright

protections for the documents requested. The very nature of Section 610.021(14) gives



                                               13
the University standing -- and, in fact, requires the University -- to assert and establish a

disclosure exemption. See § 610.027. The University was not attempting to enforce

copyrights owned by its faculty. Rather, the University was merely attempting to meet

its burden of persuasion to demonstrate compliance with the Sunshine Law. See id.

Point III is denied.

                                        CONCLUSION

       The circuit court's judgment is affirmed.




                                                   /s/ LISA WHITE HARDWICK
                                                   LISA W HITE HARDWICK, JUDGE


ALL CONCUR.




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