Missouri Press Association
Serving Missouri Newspapers Since 1867
Litigation is a terrible form of problem-solving, and yet more and more, it seems necessary in these times.
When the Missouri State Highway Patrol issued its statement on November 1, 2024, ending its long-standing policy of providing names in its online crash reports, it tossed out a decades-old practice that the public and the media relied upon to uncover the news.
The MSHP stated that it “conducts periodic review of all policies, procedures, and general orders” and as a result of such a review, decided to no longer release names online. By account, the Highway Patrol is also heavily redacting these crash reports when requested through the records center.
I have already written in this space regarding how this decision appears to violate the Sunshine Law. Those crash reports are “incident reports,” and the Sunshine Law requires certain information be provided concerning incident reports, including names. The Courts also agree that the names in incident reports must be provided. As an example, in State ex rel. Goodman v. St. Louis Bd. of Police Comm’rs, 181 S.W.3d 156 (Mo.App. 2005), the Court of Appeals held that names in accident reports must be included as a required element of incident reports.
But something else about the Highway Patrol’s decision is problematic – Can the Highway Patrol, with nothing more than a press release, dramatically change a 30-year practice of releasing names, a practice that the public and the press have come to expect?
I believe the answer is no. The Highway Patrol is a state agency, and under the law, when it issues a “statement of general applicability that implements, interprets, or prescribes law or policy, or that describes the organization, procedure, or practice requirements of any agency,” it issues a “rule.” In this case, the Highway Patrol announced a new policy that was generally applicable. It is quite clearly a “rule” under the law.
This is important because when a state agency issues a “rule,” then notice of the rule must be published, an explanation for the rule change must be provided, legal authority must be provided for the change, and comments should be solicited, all according to RSMo Chapter 536, before the rule is adopted. That way the public can find out why the rule change is being proposed and alert the agency to any potential problems.
It would have been good, for instance, to have the Highway Patrol state the statutory basis for the rule change and to provide some evidence as to why it was necessary. By turn, the press would have been able to point out the Sunshine Law provisions strongly encouraging public data to be made available online and requiring names to be included in incident reports.
Because the Highway Patrol did not engage in rulemaking procedures, the new policy could be declared null and void.
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Perhaps an ideal candidate to challenge the legality of the MSHP’s decision to remove names would be a Missouri newspaper that has obtained a “DPPA Security Access Code” from the Missouri Department of Revenue by submitting the department’s Form 4678. That access permits the “News Media” to obtain information that would otherwise be protected by the federal Drivers Privacy Protection Act (DPPA). The DPPA is the federal statute that the Highway Patrol used as a justification for removing the names. However, newspapers that gain the right to access DPPA information and report on public safety should still be able to see the names – and if the Highway Patrol is still refusing to provide names, that would be an even bigger problem. If your paper has not already submitted that form, please consider it now and get authorized.
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Earlier this year I wrote repeatedly about the coming registration requirements of the Federal Corporate Transparency Act’s Beneficial Ownership Information, which carried serious penalties for failure to comply. Good news if you did not meet the deadline. The U.S. Department of Treasury opted at the last second to issue an interim rule that exempts all companies formed under the laws of the United States. The rule now makes only foreign entities register.
