Febuary 19, 2019
By Diane Krizek,
On February 7, 2019 Jackson County Circuit Court Judge S. Margene Burnett ordered the City of Raytown to pay $42,550 after ruling the city violated the Sunshine Law by denying public records requests to protect itself against threat of litigation. The city was fined $4,000 for four public records violations plus the petitioner’s attorney fees of $38,550.00 to Steve Gorny and Chris Dandurand of The Gorny Law Firm.
The Plaintiff’s mother died January 2, 2017, after incurring injuries in a vehicular accident on Dec. 31 at the intersection of 67th and Ralston Ave. She had pulled out onto 67th St. from Ralston Ave. and was T-boned because her vision was obstructed to the west by hedges and a stone monument. Neighbors in the vicinity reported there have been previous accidents at the intersection.
The Plaintiff’s family hired Gorny Law Firm to investigate the possibility of a claim. Dandurand submitted four Public Records Requests in July and August to the city for all records of vehicle accidents, complaints about safety, intersection design and diagnostic studies regarding the area in and around 67th St. and Ralston Ave.
The City Clerk responded by closing the records and denying all four records requests in what appeared to be an attempt to shield the city against the potential threat of legal action. As disclosed in the Plaintiff’s memorandum, those public records were closed only to her family and attorneys, an unprecedented legal position. The City Clerk’s denials cited statute that allows for closure of records related to “legal action, causes of action or litigation involving a public government body and any confidential or privileged communications between a public government body and its representatives and attorneys.”
The Plaintiff’s counsel sent correspondence to the City Clerk in August informing her that the Sunshine Law required her to produce the requested records, warning her of the penalties for not doing so and citing case law. The City Clerk confirmed that she was familiar with the Sunshine Law and annually attends continuing education courses and public records training. The Plaintiff’s memorandum discloses that the City Clerk admitted she would produce the records “if only the requests would come from a different person.” She was acting under advisement of the city’s legal counsel, Wesley Carillo of Ensz & Jester P.C. In a phone call with the Plaintiff’s counsel on August 28, Carillo made clear that the production of those records would continue to be denied.
The Plaintiff filed a declaratory and injunctive relief against the city in Oct. 2017. The law firm had not planned to file a Sunshine Law violation suit but the denials to produce public records upon request were a flagrant violation of openness and transparency of public government.
No legal action had been taken before or during the period of time the requests were made. The requests were for legitimate open public records found in daily police incident and accident reports. Intersection design and traffic studies are publicly recorded in the minutes of city meetings. The closure of records and denial of producing those records discriminated specifically against the Plaintiff’s family and counsel.
Carrillo aggressively asserted that the provision of the Sunshine Law that allows for closure of records of legal actions applies to potential litigation, as well as pending litigation. To support that position, he cited a 1999 Eastern District Court of Appeals case, Tuft v. City of St. Louis.
April 2018, the Plaintiff filed a motion for summary judgment which ruled in her favor in Sept. but reasonableness of the attorney’s fees had yet to be determined by the court.
“I am proud that our client was willing to sacrifice her time and energy to pursue this case, which required more than a year of litigation before final resolution,” said Dandurand. “During the case, it became clear that the City of Raytown implemented a systematic policy to refuse the production of requested documents to any citizen if that citizen filed a notice of claim against the City, regardless of the nature of the documents requested. I hope that our client’s selfless commitment will result in municipalities taking a closer look at their open records policies.”
This month, Judge Burnett ordered the City to pay a $4,000 fine, $1,000 for each of four separate public records violations, plus the petitioner’s attorney fees of $38,550.00.
“It is worth noting that this result comes on the heels of Malin v. Cole County Prosecuting Attorney, where the Honorable Patricia Joyce found a knowing and purposeful violation of Missouri’s Sunshine Law and ordered the county to pay a significant fine. Challenged on appeal, Judge Joyce’s well-reasoned opinion was recently upheld by the Western District Court of Appeals,” said Dandurand. “It is encouraging to see Missouri Courts consistently upholding the spirit of openness embodied in Missouri’s Sunshine Law. I hope the trend continues.”
Dandurand also hopes the city will begin enforcing its ordinance against obstructed view at the intersection of 67th St. and Ralston Ave.
More Raytown news available here.