City Council

Missouri Sunshine Law Insert–Subtitle City of Warrensburg Here10, 2025 September Presented by: Victoria Hooker, Director of Sunshine Law Outreach Jay Turner, Public Protection Section Missouri Attorney General’s Office  Disclaimer This presentation does not constitute a formal opinion or an on-the-record position of the Attorney General, or legal advice from the Attorney General or the presenter.  Governmental Transparency “Democracies die behind closed doors. When government begins closing doors, it selectively controls information rightfully belonging to the people. Selective information is misinformation.” -Judge Damon Keith, U.S. Court of Appeals Detroit Free Press v. Ashcroft No. 02-1437 (6th Cir. Apr. 19, 2002)  What is the Sunshine Law? Construction of the Sunshine Law • It is the public policy of this state that meetings, records, votes, actions and deliberations of public governmental bodies be open to the public unless otherwise provided by law. • Sections 610.010 to 610.200 shall be liberally construed and their exceptions strictly construed to promote this public policy. • Takeaway: “public business” is the “public’s business” § 610.011, [Page 34] To Whom Does the Sunshine Law Apply? Public Governmental Bodies Municipalities Counties Police Departments Special Districts Committees Sections 610.010(4); 610.010(4)(c); 610.010(4)(e), RSMo 17 What is a Public Governmental Body? Public Governmental Bodies • 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. • “By its very nature, the quintessence of a ‘public governmental body’ is the power to govern by the formulation of policies and the promulgation of statutes, ordinances, rules and regulations, or the exercise of quasi-judicial power.” • Tribune Publishing Co. v. Curators of Univ. of Missouri, 661 S.W.2d 575, 584 (Mo. App. W.D. 1983). § 610.010(4), [Pages 32-33] What about Committees of a Public Governmental Body? Committees of Public Governmental Bodies • “any committee appointed by or at the direction of any of the entities and which is authorized to report to any of the above- named entities, any advisory committee appointed by or at the direction of any of the named entities for the specific purpose of recommending, directly to the public governmental body’s governing board or its chief administrative officer, policy or policy revisions or expenditures of public funds…” § 610.010(4)(e), [Pages 32-33] Not covered by the Sunshine Law? Non-public governmental bodies Common examples: • Private entities • Homeowners associations • Non-Missouri governmental entities • Judicial entities when not operating in an administrative capacity • Non-profit corporations • Unless qualifying as a quasi-public governmental body, § 610.010(4)(f) • Most individual employees or Board members • State ex rel. Moore v. Brewster, 116 S.W.3d 630, 636 (Mo. App. W.D. 2003) (individual Board members and President are not governmental bodies) • Note: Charlier v. Corum, 774 S.W.2d 518 (Mo. App. W.D. 1989) (Sheriff is a public governmental body)  Sunshine Law Policy Section 610.028 • Every public governmental body must have a policy “open to public inspection, regarding the release of information on any meeting, record or vote” • The Sunshine Law policy under Section 610.028 can be detailed, so consider including provisions about how meetings are held, procedures for searching and producing records, and how fees are calculated when responding to records requests • Include details regarding who the Sunshine Law policy applies to (the entire public body, departments within the public body, etc.) • Visit the Attorney General’s Office website for a sample Sunshine Law policy under Section 610.028 and a sample request form § 610.028, [Page 47]  Public Meetings Public Meeting Definition • Any meeting of a quorum of a public governmental body subject to section 610.010. to 610.030 at which public business is discussed, decided, or public policy formulated, whether: • In person • Electronic communication (email or text) • Conference call • Online chat, or internet message board § 610.010(5), [Page 34]  Public Meetings Public Meeting Definition (continued) • The term shall include a public vote of all or a majority of the members of a public governmental body, by electronic communication or any other means, conducted in lieu of holding a public meeting with the members of the public governmental body gathered at one location in order to conduct public business. § 610.010(5), [Page 34]  Public Meetings What is not a public meeting • The term public meeting shall not include an informal gathering of members of a public governmental body for ministerial or social purposes when there is no intent to avoid the purposes of this chapter. Colombo v. Buford, 935 S.W.2d 690 (Mo. App. W.D. 1996) • Event is “totally unstructured” with “no agenda” • No one “gaveled the occasion to order” • People “did not take turns talking to the entire group” • No “trappings of an official meeting” • No vote “was taken or any policy established”  Public Meetings Types of public meetings • Two types: Open and closed • Sunshine Law does not define or reference other common terms such as “executive session,” “special session,” or “work session” • Best practice: use only “open” or “closed” to avoid confusion § 610.010(5), [Page 34]  Public Meetings Public meeting notice requirements • Notice must include: • Time • Date • Place • Tentative Agenda • If the meeting will be conducted by telephone or electronic means, include the location the public may observe and attend the meeting § 610.020.2, [Page 36]  Public Meetings Public meeting notice requirements • A notice must be posted at least twenty-four hours in advance of all public meetings, both open and closed: • Prominent place, easily accessible to the public • Do not count weekends and holidays towards the twenty-four hours • Location requirements: • A place that is “reasonably accessible to the public” • A place that is “of sufficient size to accommodate the anticipated attendance.” • Emergency or short-notice meetings: • Still must post a meeting notice as soon as practicable • Explain the reason for holding the meeting on short notice § 610.020.2, [Page 36]  Public Meetings Tentative agenda requirement Potentially insufficient agenda Likely sufficient agenda • Unfinished business • Unfinished business • Budget • City budget proposals for • Park permits Police Department • New business • Park permits: New Year’s Eve • Grants Fireworks • Nominations • New business • City Hall parking lot • Federal grant funding for road improvements • Nominations to Board task force on education • Draft the RFP for the City Hall parking lot resurfacing project  Public Meetings Recording meetings • The body shall allow members of the public to record all open public meetings • Both audio & video recording is allowed • The body may establish guidelines regarding the matter in which meetings are recorded • Closed meetings may not be recorded without permission of the public body (Class C Misdemeanor) § 610.020.3, [Page 36]  Public Meetings Best practices for all public meeting notices • Post meeting notices and agendas in an area that is accessible to the public even after business hours, and consider posting more than one physical notice • Post a notice online whenever possible • This is required for online meetings, § 610.020.1 • Include the date and time the notice and agenda was posted • Include the name and contact information of the Records Custodian • Be as specific as possible when drafting tentative agenda items  Public Meetings Meeting minutes • Meeting minutes must include the following information: • Date • Time • Place • Members present/absent • Record of all votes taken (including a vote to close a meeting) • Roll call votes must specify each member’s individual vote • Citation to Section 610.021 subsection used to close a meeting • If applicable, the “good cause” to hold a meeting on less than 24 hours’ notice • Best practice: be narrative and detailed about topics discussed § 610.020.7, [Page 37]  Closed Meetings Usually permissive, rarely mandatory • “Except to the extent disclosure is otherwise required by law, a public governmental body is authorized to close meetings, records and votes, to the extent they relate to the following…” • As of August 28, 2025, there are 29 separate reasons to close meetings within 610.021 • Not just a best practice, a requirement: • All public business must remain open unless specifically authorized to be closed • Liability most often happens for improper closure, not for over disclosure § 610.021, [Pages 37-41]  Closed Meetings Common closed meeting authorizations • 610.021(1) Legal* • 610.021(2) Real Estate* • 610.021(3) Hiring, Firing, Disciplining or Promoting* • 610.021(6) Scholastic Records • 610.021(11) Bid Process* • 610.021(12) Sealed Bids & Contracts* • 610.021(13) Personnel Records • 610.021(14) Prohibited from disclosure by law • Cannot stand alone; must be used in conjunction with another law • 610.021(27) Individually identifiable information of a minor *Keep in mind some subsections in § 610.021 have event-based cutoffs to open certain items in the future* § 610.021, [Pages 37-41]  Closed Meetings How to close a meeting “The statute sets forth two methods: 1) a public governmental body may vote, by an affirmative public vote of a majority of a quorum of the body, to close a meeting; or 2) a public governmental body may give notice of its intention to hold a closed meeting and cite a specific exception from § 610.021.” Kansas City Star Co. v. Fulson, 859 S.W.2d 934, 942 (Mo. App. W.D. 1993) Only close a portion of the facility used for the closed meeting. Only discuss the business necessary that justifies a meeting’s closure. § 610.022, [Page 41-42] Public Records  What Is a Public Record? “Any record, whether written or electronically stored, retained by or of any public governmental body . . . .” Courts construe “record” broadly, such as “something that serves to record” Section 610.010(6), RSMo; Hemeyer v. KRCG-TV, 6 S.W.3d 880, 882 (Mo. banc 1999)  What Records Must Be Retained? Chapter 109, RSMo governs retention obligations The State Records Commission and the Local Records Board adopt records retention schedules  Public Records Electronic Transmission of Public Records • Always remember the general rule of public records: “Any record, whether written or electronically stored, retained by or of any public governmental body . . . .” § 610.010(6). • But also, under § 610.025, an electronic record may be considered a public record if it is: • Sent to a quorum of officials, which includes the sender; and • Relating to public business • If the message meets the above requirements, best practice is to send to member’s government-issued device, or to the custodian of records • Best practice: each member of a public governmental body should have a government-issued email account § 610.025, [Page 44]  Requests for Public Records Submitting open records requests • A requester can submit an open records requests in multiple ways: • Letter • Email • Phone Call • In person • Sunshine Law does not require a specific submission method • Public governmental body must act on the request as soon as possible, no later than 3 business days after custodian receives it § 610.023.3, [Page 43]  Requests for Public Records Submitting open records requests • Address request to the custodian of records by name or by title • Starr v. Jackson Cnty. Prose. Att'y, 635 S.W.3d 185 (Mo. App. W.D. 2021) • Phrase request with specificity using “language that a reasonably competent custodian of the records would understand.” • Anderson v. Vill. of Jacksonville, 103 S.W.3d 190 (Mo. App. W.D. 2003) • Best-practice examples: • Date ranges • Names or titles of employees • Topics of the documents • Include a fee threshold • Requested format: in-person access, papers copies, electronic documents § 610.023, [Page 42-43]  Requests for Public Records Responding to open records requests – Initial Response • Public governmental body must act on the request as soon as possible, no later than 3 business days after custodian receives it • If records are not provided in that 3-day period: • “Give a detailed explanation of the cause for further delay” • Provide “the place and earliest time and date that the record will be available for inspection” • There must be a “reasonable cause” for the delay • Best practice: Address any fee estimates in the initial response letter (see future slide) • Best practice: Do the initial search and estimate how many documents may be responsive, and identify that in the letter § 610.023, [Page 42-43]  Requests for Public Records Responding to open records requests – Best Practices • All employees should know the identity of the custodian of records • Employees should forward public records requests to the custodian • Records can be held in more than one location, especially electronically. A diligent search of all locations must be done. • Contact the requestor in writing • Note the day the initial 3-day response was sent • Confirm the body’s understanding of what is being requested and engage with the requester to clarify any items Address possible fees • Confirm the way that records will be produced • Be very specific when explaining reasons why records cannot be provided within 3 business days § 610.023.3, [Page 43]  Requests for Public Records Responding to open records requests - Production • If there are no records responsive to a request, the body will still need to send a response to the requester to let them know • Redact when possible instead of closing an entire record • Obvious reasons for closure (e.g., work product) are encouraged to be stated on the document itself when it is created • The Sunshine Law does not require a public governmental body to create a new record upon request, but only to provide access to existing records held or maintained by the body. • Jones v. Jackson County Circuit Court, 162 S.W.3d 53 (Mo. App. W.D. 2005) § 610.023, [Page 42-43]  Requests for Public Records Closed records • Same provisions of § 610.021 apply • If records responsive to a request are closed, provide a response that generally describes the material exempted, unless that description would reveal the contents of the exempt information • Redact when possible instead of withholding an entire record • Best practice: when closing records, provide information to the requestor about what documents have been closed in the final response letter • Note: the public governmental body must always provide a “written statement of the grounds for denial (closure)” under Section 610.023.4 upon request within 3 business days  Updates to the Sunshine Law HB 145 & 59 (effective 08/28/2025) Recent passage of HB 145 & 59 updates the Sunshine Law to: • Expand privacy protections for court-related officers. • Add Sunshine Law exemptions to protect minors, park visitors, and endangered species locations. • Update rules for public record requests, including upfront fees.  Updates to the Sunshine Law Update rules for public record requests, including upfront fees. • A request for public records to a public governmental body shall be considered withdrawn if the requester fails to remit all fees within ninety days, or within one hundred fifty days if the requested fees are greater than one thousand dollars, of a request for payment of the fees by the public governmental body, prior to fulfilling the request. • The public governmental body shall include notice to the requester that if the requester fails to remit payment of the fees within ninety days, or within one hundred fifty days, then the request for public records shall be considered withdrawn.  Updates to the Sunshine Law Update rules for public record requests, including upfront fees. • If the public governmental body responds to a request seeking clarification of the request and no response to the request for clarification is received by the public governmental body within ninety days, or within one hundred fifty days, of sending the request for clarification, then such request for public records shall be considered withdrawn. • The request for clarification by the public governmental body shall include notice to the requester that if the requester fails to respond, then the request shall be considered withdrawn.  Updates to the Sunshine Law Update rules for public record requests, including upfront fees. • If the same or a substantially similar request for public records is made within six months after the expiration of the ninety-day period, or within one hundred fifty days, and no fee was remitted for such request or no response was received to the request for clarification, then the public governmental body may request payment of the same fees made for the original request that has expired in addition to any allowable fees necessary to fulfill the subsequent request. • Any request for records to a public governmental body that is pending on August 28, 2025, shall be considered withdrawn if the requester fails to remit all fees by January 1, 2026. The provisions of this subdivision shall not apply if a lawsuit has been filed against the public governmental body with regard to the records that are the subject of the request under this subdivision.  Final Thoughts Top 10 Things to Know about the Sunshine Law • When in doubt, a meeting or record of a public body should be open to the public • The Sunshine Law applies to all records, regardless of what form they are kept in, and all meetings, regardless of the manner in which they are held • The Sunshine Law allows a public body to close meetings and records to the public in some limited circumstances but almost never requires a public body to do so. • Except in emergency situations, a public body must give a least 24 hours’ public notice before holding a meeting. If the meeting will be closed to the public, the notice must state the specific provision within Section 610.021 that allows the meeting to be closed.  Final Thoughts Top 10 Things to Know about the Sunshine Law • Each public body must have a written Sunshine Law policy and a custodian of records whose name is available to the public upon request. • The Sunshine Law requires a custodian of records to respond to a records request as soon as possible but no more than three business days after the custodian receives it. • When responding to a request for copies of its records, the Sunshine Law limits how much a public body can charge – per page, and per hour – for copying and research fees. • There are specific provisions governing access to law enforcement and judicial records.  Final Thoughts Top 10 Things to Know about the Sunshine Law • The Sunshine Law allows for open public meetings to be both audio and video recorded by attendees. Each public governmental body may set up guidelines regarding the recording process. These guidelines should be included in the body’s Sunshine Law policy. No one is allowed to record a closing meeting, if they are not given permission to do so. • The Sunshine Law deals with whether a public body’s records must be open to the public, but it generally does not state what records the body must keep or for how long. For more information concerning records retention schedules call the Secretary of State or visit their website at www.sos.mo.gov/archives/localrecs.  Final Thoughts Common findings in Missouri State Auditor reports • Lack of Sunshine Law policies and procedures • See requirement in § 610.028 for written Sunshine Law policy • No custodian of records • Meeting notice/agenda issues: • Agenda not included • No documentation of when notice was posted • Meeting minutes issues: • Items absent: meeting time, date, location, members present and absent • Votes not recorded • Improper or missing citations to § 610.021 provisions for closed sessions • Improper closed sessions, deviating from closed topics  Questions? Contact us: SunshineComplaint@ago.mo.gov (573) 751-3424 www.ago.mo.gov