Minimizing courts’ shading of Sunshine on records

The Court of Appeals decision makes it easier for any public body to claim a document is related to litigation – even if the document was not created in response to a threat of litigation. Judge Alok Ahuja’s dissent properly pointed out that this exemption is supposed to be strictly construed.”

Dan Curry, MPA Hotline Attorney

Two Sunshine Law decisions came down on Jan. 28, and each evinces a disheartening trend toward keeping the public in the dark. However, there are some easy strategies reporters can use to minimize their impact.

Weeks v. City of St. Louis, No. ED112624 (Mo.App.E.D. January 28, 2025)

With your Sunshine requests, better to be broad than specific when asking for a particular format.. In the case Weeks v. City of St. Louis, Mo., the Court of Appeals upheld a bench trial finding in favor of the City of St. Louis in its refusal to produce traffic stop data. In this case, it was not that the City claimed the information was closed material. The gentleman requesting the records had specified production of electronic data in a certain format (excel) when the City had maintained the data in a different format (.csv). The Court of Appeals majority decided there was sufficient evidence to support the trial court’s judgment that “the City did not hold or maintain an existing record responsive” to the request.

Here’s the issue: It takes seconds to convert an excel file to a .csv format.  The strong dissent from Judge John Torbitzky, who would have held that the unavailability of a specified format should not relieve a public body of the duty to share information: “Although the databases were kept with a .CSV extension, rather than an Excel extension, the Department was still required to disclose the information to Weeks because it had no statutory authority to close these records. See section 610.210.”

Strategy to consider: When asking for a certain format for the data, a prudent approach might be to alert the public body that if the specified format is unavailable, another format would suffice.

Gross v. Schmitt, No. WD87007 (Mo.App.W.D. January 28, 2025)

This case held that a public body properly used the Sunshine Law’s litigation exemption to withhold documents concerning how it had searched for records in response to a prior Sunshine request. The litigation exception applies to both active and potential litigation, and the Court of Appeals found that the Missouri Attorney General’s Office had sufficiently demonstrated that the person requesting the records had already threatened litigation and that the requested records were inherently related to the threatened litigation.

Here’s the issue: The litigation exception is supposed to be narrow. The Court of Appeals decision makes it easier for any public body to claim a document is related to litigation – even if the document was not created in response to a threat of litigation. Judge Alok Ahuja’s dissent properly pointed out that this exemption is supposed to be strictly construed and that documents cannot be related to litigation if they were created even before the threat of litigation.

Strategy to consider: If this case is properly construed in light of earlier precedent, it probably should be limited to legal memoranda prepared in response to Sunshine requests. For the time being, the easiest way to avoid this situation is to refrain from any threat of litigation unless necessary.

Update on FinCEN reporting requirements

The Federal Corporate Transparency Act’s Beneficial Ownership Information requirements are back in effect. The deadline to file the necessary form has been extended to March 21, 2025 for most companies. I delved into this matter in last month’s column – there are stiff fines for companies that do not register owner information by the deadline.

The reporting form and more information is available at https://fincen.gov/boi.