Closed Records: Confidential But Not Privileged From Discovery
Robert L. Hess II1
The Sunshine Law “closed record” exceptions are not discovery privileges.
When a private party litigant requests production of documents, the government agency frequently objects, claiming it has closed the documents under the Sunshine Law and that closed documents cannot be discovered. The issue has appeared in numerous appellate decisions over the last 20 years.2 Most courts have held that closing a record under the Sunshine Law does not mean it cannot be discovered in litigation.3 Other courts have cited closed record exceptions as the basis for refusing discovery.4 In one case, the Supreme Court was presented with the question, but based its decision on other grounds.5 This issue is important for two reasons. First, it arises frequently, reflecting its relative importance to the parties. Second, the cases conflict and either side may cite cases that plausibly support its position, so discovery disputes are common and inconsistency is prevalent. This article serves three purposes: (1) it catalogs the case law; (2) it provides the proper analysis to reconcile the discovery rules and the Sunshine Law; and (3) it argues that the proper outcome is that Sunshine Law closure does not ordinarily equate with non-discoverability.
This article focuses on the applicability of § 610.021, RSMo, to discovery requests. That statute contains the most closed record exceptions. It provides: “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.” Twenty-one subsections then enumerate the types of records that public governmental bodies may close to the public. Other Missouri statutes contain similar confidentiality provisions, and Part IV of this article suggests general principles that may apply to those provisions. However, an individualized analysis of whether and to what extent other statutes create privileges is generally beyond the scope of this article.
I. Access to Government Records
Discovery rules govern the rights of litigants to obtain information, while the Sunshine Law concerns the rights of the public to review government records. These bodies of law provide the background for the analysis of § 610.021.
A. Discovery of Documents in Litigation
Litigation is the public process for resolving disputes. The search for “the truth, the whole truth, and nothing but the truth” is central to that process.6 To facilitate the truth-finding process, civil parties may use compulsory processes to discover any information that is relevant and not privileged.7 Information that would be inadmissible at trial is still discoverable if it “appears reasonably calculated to lead to the discovery of admissible evidence.”8 Requests for production of documents and subpoenas duces tecum are the discovery tools used to obtain documents.9 Since non-compliance may be punished with a contempt citation or other sanctions, discovery may be obtained from non-cooperative or even hostile opponents and third parties.10 The same discovery standards apply in most adversarial administrative proceedings.11
Privileges protect information from discovery or admission into evidence.12 They are “impediments to discovery of truth,” and an exception to the normal rule that all relevant information should be available to the parties.13 Privileges recognize that limits on the truth-finding process are necessary to preserve other societal relationships and principles.14 If information is privileged, it is not discoverable even if it is relevant and material.15 As such, laws creating privileges are strictly construed.16 The party claiming privilege has the burden of establishing the privilege.17 In Missouri, recognized privileges exist for attorney-client communications, attorney work product, health information, marital communications, clergy communications, political votes, trade secrets, confidential informants, newspersons, and accountant-client communications.18
Trial courts and administrative tribunals have other options for safeguarding confidential information. Protective orders, in-camera reviews, redactions of identifying information, and orders sealing records are less drastic means for maintaining a level of confidentiality without completely withdrawing the information from the truth-finding process.19 For example, the Supreme Court of Missouri recognizes that employees have a right to privacy in their personnel records.20 But, the employee’s privacy interest is not protected by a statutory privilege.21 To protect the employee’s privacy interest, the Court’s pragmatic approach has been to require the proponent of the discovery to establish the relevancy for the individual items in the personnel file, rather than to permit requests for the entire personnel file.22 Each request must be closely evaluated for relevancy and protective orders should be entered when disclosure of sensitive information would tend to unduly embarrass or humiliate the employee.23
B. Right to Review Public Records
Under the Sunshine Law, government records are presumptively open and available for public review.24 The policy of openness promotes transparent and accountable government.25 It also reflects a consensus that members of the public have a general right to review government records for their own purposes and regardless of their specific legal interests.26 The Sunshine Law is construed in favor of openness.27
The policy of openness is not absolute.28 Agencies may close records to the public under defined exceptions.29 When a closed record exception applies, the agency is permitted, but not required, to keep the information confidential.30 Some closed record exceptions coincide with the classic privileges: for example, attorney-client communications, attorney work product, auditor communications, and health information.31 Most exceptions, however, apply to information that has not been historically privileged. Closed record exceptions are provided for personal information of employees, students, and government beneficiaries,32 software codes and other proprietary materials,33 state security matters,34 and other materials. These exceptions balance the government’s need for confidentiality against the public’s right to know.35 Closed record exceptions are narrowly construed.36 If a record contains closed and open portions, the open portion of the record must be produced if possible.37
The Sunshine Law not only defines public and closed records, it also establishes a process for obtaining access to public records. The individual first makes a request to the agency’s records custodian.38 The identity of the custodian must be provided upon request.39 The records custodian must respond to the request within three business days.40 If the agency refuses to produce the information, it must provide a written statement of its grounds upon request.41 The agency may charge the requestor 10 cents per page plus a reasonable fee for research and copying time.42 It also has discretion to waive those charges in the public interest.43
Any aggrieved person, citizen, or taxpayer of the state may sue to enforce the Sunshine Law.44 When an agency relies on a closed record exception, it has the burden of persuading the court that it complied with the law.45 In the lawsuit, the plaintiff may obtain records to which it is entitled, injunctive relief voiding actions taken in violation of the Sunshine Law, or money penalties and attorney fees for purposeful or knowing violations.46
II. Conflict Over Discoverability of Closed Records
Appellate decisions conflict regarding the discoverability of closed records under § 610.021. Most courts have concluded that closed records are discoverable or at least discoverable in some circumstances.47 Other courts, however, have treated the closed record exceptions as privileges.48 In one case, the Supreme Court was presented with the question, but based its decision on other grounds.49 Since the closed record exceptions are authorized by statute, the rules of statutory interpretation guide the analysis. “[T]he primary rule of statutory construction is to ascertain the intent of the legislature from the language used, to give effect to that intent, if possible, and to consider the words in their plain and ordinary meaning.”50 Statutory construction should be reasonable and logical.51 Courts consider all provisions of an act and the purpose of those provisions to determine legislative intent.52 Interpretations that would lead to absurd or unjust results or that would render the statute unconstitutional should be avoided.53
In interpreting the closed record exceptions, courts have focused on three principal factors: the text of § 610.021, the purpose of the Sunshine Law as a whole, and the requirements of due process. Under their analyses, courts have reached different conclusions. Yet, these approaches need not be contradictory. Instead, the best interpretations reinforce each other and lead to the same conclusion: records closed to the public under § 610.021 are not ordinarily privileged from discovery.
A. Text of § 610.021
Section 610.021 provides: “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.” A list of 21 closed record exceptions then follows. Each of those exceptions identifies a different type of document which may be closed to the public. Two exceptions refer to “privileged” communications with attorneys and auditors.54 Otherwise, the exceptions do not address discoverability or admissibility of documents.
Based on the text of § 610.021, courts have usually concluded that the closed record exceptions do not privilege records from discovery because the agency’s ability to close records has been expressly qualified.55 The agency cannot close records when disclosure is otherwise required by law.56 Since the discovery rules and, in some cases, the constitution require pre-trial disclosure of information, courts have reasoned that such disclosures are required by law and therefore expressly permitted by § 610.021.57 Likewise, to create a privilege, a statute must use the word “privilege” in context, bar all disclosures to a particular entity (for example, the state), or “prohibit[ ] the use of confidential information in evidence.”58 A limit on the public’s general right to access information does not create a privilege.59 Other states and federal courts have reached the same conclusion in interpreting their open records laws.60
Other courts have cited § 610.021 as a basis for refusing discovery.61 The most extensive discussion occurred in State ex rel. Board of Pharmacy v. Otto.62 There, a licensee sought to discover the personnel file of a Board of Pharmacy inspector and the personnel and licensure files of the pharmacy and of two pharmacists who worked at the pharmacy.63 The board resisted the request for those files by citing the closed record exception for personnel records in § 610.021(13).64 The opinion accepted the facial assertion that closed records are not discoverable, and did not separately analyze whether a closed record is privileged from discovery.65
The Otto court also considered whether § 620.010.14(7) protected the personnel and licensure files from discovery.66 That section provided that licensee files were “confidential and may not be disclosed to the public or any member of the public, except with the written consent of the person whose records are involved.”67 The statute included an exception for disclosure “in the course of any litigation concerning that person, or pursuant to a lawful request.”68 The court held that this provision also prohibited disclosure of the files of other licensees to the litigant.69 As it had in evaluating the § 610.021 exception, the court assumed that a confidential record cannot be discovered.70 The licensee argued that his request qualified as a “lawful request” and was thus subject to the exception in the statute.71 The court, however, held that exceptions in statutes must be strictly construed and that to adopt the licensee’s interpretation “would be to hold that any request would qualify as a ‘lawful request.’”72 The court’s analysis did not distinguish between requests made by the general public and requests made through compulsory discovery processes.73 It also did not consider the general rule that privileges must be strictly construed.74 Rather, it accepted the assertion that a confidential record is not discoverable and then strictly construed the exceptions permitting disclosure.
B. Purpose of the Sunshine Law
Other decisions focus on the purpose of the Sunshine Law more generally.75 The Sunshine Law promotes transparent government and presumptively opens all records to public review.76 As an exception to this right of access, the legislature has provided for closed record exceptions.77 Those exceptions limit the otherwise unfettered access of the public to government records.78 By way of contrast, discovery rules facilitate the search for truth by allowing litigants to compel production of all information that is relevant to their case.79 The Sunshine Law was not meant to limit discovery rights of parties, and is generally inapplicable to such requests.80
In resisting discovery, government agencies and officials have taken a narrower view. They have argued that § 610.021 allows a record to be closed and not disclosed to the “public” and, since the litigant is a member of the public, the agency need not disclose the record to that person.81 Courts have rejected this argument, because the public and litigants have different rights to access information.82
C. Due Process of Law
Still other decisions have considered the constitutionality of prohibiting disclosure of material evidence. In general, the public does not have a constitutional right to inspect government records.83 Statutes and the common law define their right to inspect and the limits on that right.84 By way of contrast, litigants may have a constitutional right to obtain disclosure of information. Both the state and federal constitutions require government to afford “due process of law” before depriving “any person of life, liberty or property[.]”85
In Brady v. Maryland, the United States Supreme Court held that due process requires criminal prosecutors to disclose material, exculpatory evidence to the defense before trial.86 In Pennsylvania v. Ritchie, the United States Supreme Court later held that the accused’s constitutional right to disclosure of exculpatory evidence may override a confidentiality statute.87 Where a statute mandates confidentiality, the trial court should review the documents to ascertain whether they are material.88 If they are material, the defendant’s due process rights require disclosure.89 In applying these decisions to § 610.021, one court has held that Brady disclosures are required by law and, therefore, expressly exempt from the closed record requirement.90 Other decisions have assumed that the closed records exception would otherwise bar disclosure of the evidence, and engaged in a Ritchie balancing test to determine whether due process requires disclosure.91 If the evidence is material, disclosure is required.92 If materiality is in doubt, they have required an in camera review.93 And, if materiality has not been established, they do not require disclosure.94
Thus, in the criminal due process analysis, the key factor is materiality. The confidentiality interest may trigger a heightened review for materiality. But, it is not sufficient justification to deny material evidence to a defendant. Withholding such evidence violates the criminal defendant’s right to due process.
The requirements of due process are different in civil and administrative proceedings.95 When government action deprives a person of a property or liberty interest, due process requires notice and an opportunity for a meaningful hearing at a meaningful time.96 Though most of the constitutional cases have been criminal, one court has expressed similar concern about the constitutionality of interpreting § 610.021’s closed record exceptions as privileges in an administrative proceeding. In Christiansen v. Missouri State Board of Accountancy, the Court of Appeals for the Western District stated that prohibiting disclosure of agency files to a licensee “would be tantamount to a denial of due process.”97 Thus, even if closed record exceptions are interpreted as privileges, due process may require production of the documents.
III. The Closed Record Exceptions in § 610.021 Are Not Discovery Privileges
The text of § 610.021, purpose of the Sunshine Law, and constitutional concerns all support the conclusion that closed records are not privileged from discovery. Treating the closed record exceptions in § 610.021 as privileges would also lead to absurd and unjust results. As a practical matter, less restrictive alternatives exist to protect confidential and sensitive information.
The textual case for permitting discovery is stronger than the case for treating closed records as privileged. By its own terms, § 610.021 does not override other laws that may require disclosure.98 Discovery rules are one such set of laws.99 Under discovery rules, parties may obtain any relevant, non-privileged information.100 The confidentiality language in § 610.021 has none of the indicia of an evidentiary privilege.101 It merely creates a permissive, qualified right to keep records from the public.
The textual counter argument is that § 610.021 permits the agency to close records to the “public,” which is a broad term that includes litigants.102 It also equates confidentiality with non-discoverability.103 This argument is weaker for three reasons. First, it does not take into account the express language in § 610.021 recognizing that other laws may require disclosure of closed records.104 Second, the argument assumes that the right to close a record to the “public” reflects an intent to create a strong confidentiality protection. The better textual interpretation is that “public” refers to those individuals with only a general, non-specific right to inspect the records under the Sunshine Law. It is not intended to prevent all disclosures to everyone.105 Third, the argument fails to distinguish between general confidentiality provisions and privileges.106 A confidentiality provision protects information from public review, but a privilege prevents information from being used in litigation.107
More generally, the purpose of the Sunshine Law is to increase the transparency of government. If the 21 closed record exceptions in § 610.021 are privileges, the amounts and kinds of material that agencies may withhold in litigation has been greatly increased. That effect – a vast expansion of government privilege – directly contradicts the purpose of the Sunshine Law.108 In fact, treating § 610.021 closed records exceptions as privileges would lead to absurd and unreasonable results. If the closed record exceptions for personnel files and other materials are interpreted as privileges, the same principle should apply to all of the § 610.021 exceptions. No difference in the operative statutory language exists. Under § 610.021, agencies may close records relating to “[l]egal actions, causes of action or litigation involving a public governmental body.” By invoking § 610.021(1), an agency might try to resist discovery of any relevant materials in its possession on the theory that all such materials relate to the litigation. More likely, the agency might choose to selectively disclose certain materials while withholding other materials. A unilateral right to selectively withhold any or all materials related to the case would be “absurd” and “unreasonable” and would raise serious constitutional concerns under the due process clause.109 Such interpretations of statutes should be avoided.
Agencies are not at an unfair disadvantage if they must disclose closed records in litigation. Rather, they will be on the same level playing field as private party litigants. Recognized privileges already protect the most sensitive information. For example, privileges exist for attorney-client communications and attorney work product.110 Where information is confidential or sensitive but not privileged, the agency may seek an in camera review or a protective order to safeguard the agency’s interest. Finally, for the reoccurring cases involving personnel files, the Supreme Court has specifically recognized the special consideration that must be given to those files.111 That line of authority – rather than the closed record exceptions – is the appropriate body of law to apply when considering discovery requests for personnel files.
Accordingly, the closed record exceptions in § 610.021 are not privileges, and should not be interpreted to limit discovery of otherwise non-privileged information. The court cases stating that closed records under § 610.021 are not discoverable reach the wrong result. The cases holding that § 610.021 does not protect documents from discovery are better reasoned, reach the correct result, and should be followed.
IV. Application to Other Contexts
The distinction between confidentiality and privilege suggests principles for interpreting other statutes and informs the language to be used in drafting legislation and court opinions. First, many statutes simply state that a record may be treated as a “closed record.”112 For those statutes, the closed record exception should be interpreted as a confidentiality provision, but not as a discovery privilege. “Closed record” is the defined term used in the Sunshine Law to identify a record that may be closed to the public pursuant to Chapter 610.113 When the legislature uses the same term in other statutes, the most logical conclusion is that it intends for the records to be treated the same as closed records under § 610.021.114 Nothing about the term “closed record” indicates that the legislature intended to go further and create a privilege. Accordingly, statutes designating records as “closed records” should be interpreted only as confidentiality provisions and not as discovery privileges.
Second, if a statute expressly creates a “privilege” or prohibits discovery of a document, that language shows the legislature intended to create a privilege.115 In those cases, the legislative intent should be followed, as long as the statute does not violate the due process guarantee.116
Third, for confidentiality provisions that lie somewhere in between, the analysis of whether a privilege exists will depend on the particular wording of the statute.117 However, recognizing that privileges are exceptions to the normal rule that all relevant and material evidence may be discovered, such statutes should be strictly construed.118 Protective orders and less drastic measures are available to protect confidential and sensitive information. Courts should require a clear statement of legislative intent before recognizing a privilege.
Fourth and more generally, the concepts of confidentiality and privilege should not be used interchangeably. As an example of confusion in the statutes, § 324.017 addresses access to records from closed proceedings of agencies.119 Subsection 5 currently provides: “Except as disclosure is specifically provided above and in section 610.021, RSMo, deliberations, votes, or minutes of closed proceedings of agencies shall not be subject to disclosure or discovery.”120 The language in § 324.017.5 thus prohibits discovery of the records subject to § 610.021 – but § 610.021 provides for disclosures required by law which, in turn, would include discovery. The statute’s confusion of closed and non-discoverable records makes it inherently contradictory. Courts and legislative drafters should choose their language to clearly distinguish between confidential documents (“closed” records) and non-discoverable information (“privileged” information).
V. Conclusion
The Sunshine Law and discovery are both laws designed to facilitate access to information. When their purposes are compared and their specific provisions are reconciled, they complement each other. In enacting Chapter 610, the legislature has appropriately protected certain categories of information from public review, but has not barred their use in the search for “the truth, the whole truth, and nothing but the truth” that the discovery process facilitates. Closed records should be disclosed by agencies in discovery, unless an independent privilege exists and with such protective orders as may be necessary to safeguard the confidentiality of non-privileged information.
Footnotes
1 Robert L. Hess II is a partner in the Jefferson City office of Husch Blackwell Sanders LLP. He is a 2001 graduate of the Vanderbilt University Law School.
2 See, e.g., Christiansen v. Mo. State Bd. of Accountancy, 764 S.W.2d 943, 951-52 (Mo. App. W.D. 1988).
3 See, e.g., State ex rel. Mo. State Bd. of Pharmacy v. Admin. Hearing Comm’n, 220 S.W.3d 822, 826-27 (Mo. App. W.D. 2007) (permitting discovery of records that could have been closed); State ex rel. Jackson County Grand Jury v. Shinn, 835 S.W.2d 347, 348 (Mo. App. W.D. 1992) (holding that a grand jury may subpoena closed records).
4 See, e.g., State ex rel. King v. Sheffield, 901 S.W.2d 343, 346-48 (Mo. App. S.D. 1995) (holding that closed records subpoenaed by a criminal defendant need not be disclosed); State ex rel. State Bd. of Pharmacy v. Otto, 866 S.W.2d 480, 484-85 (Mo. App. W.D. 1993) (denying discovery of closed records).
5 State v. Anderson, 79 S.W.3d 420, 436-37 (Mo. banc 2002).
6 See § 491.380.2, RSMo 2000.
7 Rule 56.01(b)(1).
8 Id.
9 Rules 57.09 and 58.01.
10 Rules 57.09(f) and 61.01(d).
11 Section 536.073.2, RSMo 2000 (“[A]ny agency authorized to hear a contested case may make rules to provide that the parties may obtain all or any designated part of the same discovery that any Missouri supreme court rule provides for civil actions in circuit court.”); 1 CSR 15-3.420(1) (providing for discovery in Administrative Hearing Commission proceedings equivalent to the scope of discovery in civil actions).
12
State ex rel. Chandra v. Sprinkle, 678 S.W.2d 804, 807 (Mo. banc 1984);
State ex rel. Health Midwest Dev. Group, Inc. v. Daugherty, 965 S.W.2d 841, 843 (Mo. banc 1998).
13
Id.
14
See,
e.g.,
State ex rel. Madlock v. O’Malley, 8 S.W.3d 890 (Mo. banc 1999) (“The discovery process was not designed to be a scorched earth battlefield upon which the rights of the litigants and the efficiency of the justice system should be sacrificed to mindless overzealous representation of plaintiffs and defendants.”)
Id. at 891.;
Ex parte McClelland, 521 S.W.2d 481 (Mo. App. E.D. 1975) (“Society in general, and courts and legislatures in particular, have recognized that certain exceptions to that general rule [of discoverability] must be made, either for the protection of basic human individual needs or for the protection of the society itself.”).
Id. at 483.
15 Id.
16 See, e.g., State ex rel. Health Midwest Dev. Group, Inc. v. Daugherty, 965 S.W.2d 841, 843 (Mo. banc 1998).
17 State ex rel. Ford Motor Co. v. Westbrooke, 151 S.W.3d 364, 367 & n.5 (Mo. banc 2005); Rule 58.01(c)(3).
18 See generally 22 William A. Schroeder, Missouri Practice (Evidence, 3d) §§ 501-13 (2007).
19 Rule 56.01(c)(1) (protective orders). See, e.g., State ex rel. Friedman v. Provaznik, 668 S.W.2d 76, 79-80 (Mo. banc 1984) (ordering an in camera review, redaction of privileged information, and production of non-privileged information).
20 State ex rel. Delmar Gardens North Operating, LLC v. Gaertner, 239 S.W.3d 608, 611 (Mo. banc 2007); State ex rel. Tally v. Grimm, 722 S.W.2d 604, 605 (Mo. banc 1987).
21 State ex rel. Pierson v. Griffin, 838 S.W.2d 490, 492 (Mo. App. W.D. 1992).
22 Delmar Gardens, 239 S.W.3d at 612; Madlock, 8 S.W.3d at 891-92; Tally, 722 S.W.2d at 605.
23 Id.
24 Sections 610.011.2 and 610.022, RSMo Supp. 2008.
25 See, e.g., Cohen v. Poelker, 520 S.W.2d 50, 52 (Mo. banc 1975); Librach v. Cooper, 778 S.W.2d 351, 353-54 (Mo. App. E.D. 1989). Cf. Louis D. Brandeis, Other People’s Money and How the Bankers Use It 92 (Melvin I. Urofsky, ed.,1914) (“Sunlight is said to be the best of disinfectants.”).
26 In re Transit Casualty Co., 43 S.W.3d 293, 297-98, 300 (Mo. banc 2001).
27 Section 610.011.1, RSMo Supp. 2008.
28 Section 610.021, RSMo Supp. 2008.
29 Id.
30 Section 610.022.4, RSMo Supp. 2008; Guyer v. City of Kirkwood, 38 S.W.3d 412, 414 (Mo. banc 2001).
31 Compare §§ 610.021(1), (5), (17) (closed record exceptions), with § 326.322, RSMo Supp. 2008 (privilege for communications to accountants), and § 491.060(3), RSMo 2000 (attorney-client privilege), and § 491.060(5), RSMo 2000 (physician-patient privilege).
32 Sections 610.021(3), (6), (7), (8), (13), (21), RSMo Supp. 2008.
33 Sections 610.021(10), (15), RSMo Supp. 2008.
34 Sections 610.021(4), (18), (19), (20), RSMo Supp. 2008.
35 See, e.g., Wilson v. McNeal, 575 S.W.2d 802, 805 (Mo. App. E.D. 1978); Librach, 778 S.W.2d at 353-54.
36 Section 610.011.1, RSMo Supp. 2008
37 Section 610.024.1, RSMo Supp. 2008.
38 Section 610.023.3, RSMo Supp. 2008. Agencies must designate a records custodian. Section 610.023.1, RSMo Supp. 2008.
39 Id.
40 Id. It is typical – especially for large requests – for the agency to acknowledge receipt of the request within three days, and provide an estimated timeframe for submitting a complete response.
41 Sections 610.023.3 and .4, RSMo Supp. 2008.
42 Section 610.026, RSMo Supp. 2008.
43 Section 610.026(1), RSMo Supp. 2008.
44 Section 610.027.1, RSMo Supp. 2008.
45 Section 610.027.2, RSMo Supp. 2008.
46 Sections 610.027.1, .3, .4, .5, RSMo Supp. 2008.
47 See, e.g., Bd. of Pharmacy, 220 S.W.3d at 826-27; State ex rel. City of Springfield v. Brown, 181 S.W.3d 219, 222-23 (Mo. App. S.D. 2005); State ex rel. Jackson County Grand Jury v. Shinn, 835 S.W.2d 347, 348 (Mo. App. W.D. 1992); State v. Perry, 879 S.W.2d 609, 614 (Mo. App. E.D. 1994); Christiansen v. Mo. State Bd. of Accountancy, 764 S.W.2d 943, 951 (Mo. App. W.D. 1988). See also State ex rel. Mo. Ethics Comm’n v. Nichols, 978 S.W.2d 770, 773-74 (Mo. App. E.D. 1998).
48 See, e.g., Otto, 866 S.W.2d at 484-85; State v. Shafer, 969 S.W.2d 719, 740 (Mo. banc 1998) (per curiam); Paige v. Harper, No. 1:06CV111 HEA, 2007 WL 4289662, at *1 (E.D. Mo. Dec. 3, 2007).
49 State v. Anderson, 79 S.W.3d 420, 436-37 (Mo. banc 2002).
50 See, e.g., Lewis v. Gibbons, 80 S.W.3d 461, 465 (Mo. banc 2002) (per curiam); § 1.090, RSMo 2000.
51 Lewis, 80 S.W.3d at 465.
52 See, e.g., Neske v. City of St. Louis, 218 S.W.3d 417, 424 (Mo. banc 2007).
53 Id.; Silcox v. Silcox, 6 S.W.3d 899, 903 (Mo. banc 1999).
54 Sections 610.021(1), (17), RSMo Supp. 2008.
55 State ex rel. Mo. State Bd. of Pharmacy v. Admin. Hearing Comm’n, 220 S.W.3d 822, 826-27 (Mo. App. W.D. 2007); State ex rel. City of Springfield v. Brown, 181 S.W.3d 219, 222-23 (Mo. App. S.D. 2005); State v. Perry, 879 S.W.2d 609, 614 (Mo. App. E.D. 1994).
56 Id. Cf. Guyer v. City of Kirkwood, 38 S.W.3d 412, 414 (Mo. banc 2001) (relying on the exception for disclosures required by law to reconcile § 610.021 and § 610.100).
57 Bd. of Pharmacy, 220 S.W.3d at 826-27; Brown, 181 S.W.3d at 222-23; Perry, 879 S.W.2d at 614. See also Mo. Const. art. V, § 5 (Supreme Court rules “shall have the force and effect of law”).
58 State ex rel. Mo. Ethics Comm’n v. Nichols, 978 S.W.2d 770, 773-74 (Mo. App. E.D. 1998).
59 Id. The Nichols case did not directly consider § 610.021. Rather, the specific confidentiality statutes governing Ethics Commission proceedings were at issue. Id. at 772. The court concluded that those provisions, however, were equivalent to closed record exceptions. Id. at 773-74. While other cases approach the issue from the perspective of the Sunshine Law, this case provides an insightful analysis from the perspective of discovery rules. It reviewed the cases analyzing whether a confidentiality provision rises to the level of a privilege, and concluded that statutes intended to protect files from disclosure under open records laws are not evidentiary privileges. Id.
60 Id. at 773-74 (citing cases). See, e.g., Kamakana v. City and County of Honolulu, 447 F.3d 1172, 1185 (9th Cir. 2006); Friedman v. Bache Halsey Stuart Shields, Inc., 738 F.2d 1336, 1344 (D.C. Cir. 1984). Cases decided under the federal Freedom of Information Act and the open records laws of other states are instructive in interpreting Missouri’s Sunshine Law. Hyde v. City of Columbia, 637 S.W.2d 251, 262 (Mo. App. W.D. 1982); Wilson v. McNeal, 575 S.W.2d 802, 808 (Mo. App. E.D. 1978).
61 Otto, 866 S.W.2d at 484-85; State v. Shafer, 969 S.W.2d 719, 740 (Mo. banc 1998) (per curiam) (citing § 610.021 with no discussion); Paige v. Harper, No. 1:06 CV111 HEA, 2007 WL 4289662, at *1 (E.D. Mo. Dec. 3, 2007) (citing § 610.021 with no analysis).
62 Otto, 866 S.W.2d 480.
63 Id. at 482.
64 Id. at 484-85.
65 Id.
66 Id. at 485. A similar provision is now codified at § 324.001.8, RSMo Supp. 2008.
67 Otto, 866 S.W.2d at 484.
68 Id.
69 Id. at 485.
70 Id.
71 Id.
72 Id.
73 Id.
74 Id.; Health Midwest, 965 S.W.2d at 843.
75 Christiansen v. Mo. State Bd. of Accountancy, 764 S.W.2d 943, 951 (Mo. App. W.D. 1988); Shinn, 835 S.W.2d at 348-49.
76 Id.
77 Id.
78 Id.
79 Id. See also Nichols, 978 S.W.3d at 773.
80 Christiansen, 764 S.W.2d at 951; Shinn, 835 S.W.2d at 348.
81 Id.
82 Id.
83 See, e.g., Houchins v. KQED, Inc., 438 U.S. 1, 15-16 (1978) (plurality opinion) (“Neither the First Amendment nor the Fourteenth Amendment mandates a right of access to government information or sources of information within the government’s control.”); Travis v. Reno, 163 F.3d 1000, 1007 (7th Cir. 1998).
84 Id.; Transit Casualty Co., 43 S.W.3d at 300-302.
85 U.S. Const. amend. XIV; Mo. Const. art. I, § 10.
86 Brady v. Maryland, 373 U.S. 83, 86-87 (1963) (holding that suppression of favorable, material evidence violates an accused’s right to due process).
87 Pennsylvania v. Ritchie, 480 U.S. 39, 57-61 (1987).
88 Id. at 59.
89 Id.
90 Perry, 879 S.W.2d at 614.
91 State ex rel. St. Louis County v. Block, 622 S.W.2d 367, 370-72 (Mo. App. E.D. 1981); State ex rel. King v. Sheffield, 901 S.W.2d 343, 347-48 (Mo. App. S.D. 1995). See also State ex rel. White v. Gray, 141 S.W.3d 460, 466-67 (Mo. App. W.D. 2004) (adoption records); State ex rel. Fusselman v. Belt, 893 S.W.2d 898, 900-01 (Mo. App. W.D. 1995) (arrest record).
92 Perry, 879 S.W.2d at 613.
93 White, 141 S.W.3d at 466; Block, 622 S.W.2d at 372; Fusselman, 893 S.W.2d at 901.
94 State v. Shafer, 969 S.W.2d 719, 740 (Mo. banc 1998); Scroggins v. State, 859 S.W.2d 704, 706 (Mo. App. W.D. 1993).
95 See, e.g., Morrissey v. Brewer, 408 U.S. 471, 480 (1972) (“the full panoply of rights due a defendant in a [criminal prosecution] … does not apply to parole revocations.”).
96 See, e.g., Mathews v. Eldridge, 424 U.S. 319, 332-33 (1976); Jamison v. Dep’t of Soc. Servs., 218 S.W.3d 399, 405 (Mo. banc 2007).
97 Christiansen, 764 S.W.2d at 952.
98 Section 610.021, RSMo Supp. 2008 (“Except to the extent disclosure is otherwise required by law . . . ”).
99 Mo. Const. art. V, § 5 (providing for Supreme Court rules with “the force and effect of law.”).
100 Rule 56.01(b)(1).
101 State ex rel. Mo. Ethics Comm’n v. Nichols, 978 S.W.2d 770, 773-74 (Mo. App. E.D. 1998).
102 See § 610.010(1), RSMo Supp. 2008 (defining a closed record as a record closed to the public).
103 See, e.g., Otto, 866 S.W.2d at 484-85.
104 State ex rel. Mo. State Bd. of Pharmacy v. Admin. Hearing Comm’n, 220 S.W.3d 822, 826 (Mo. App. W.D. 2007); Brown, 181 S.W.3d at 222.
105 Christiansen, 764 S.W.2d at 956; Shinn, 835 S.W.2d at 348.
106 Nichols, 978 S.W.2d at 773-74.
107 Id.
108 Section 610.011, RSMo Supp. 2008.
109 See, e.g., Christiansen, 764 S.W.2d at 952.
110 Section 491.060, RSMo 2000; Rule 56.01(b)(3).
111 See, e.g., Delmar Gardens, 239 S.W.3d at 612.
112
See,
e.g., § 30.600, RSMo 2000 (financial records provided to treasurer); § 135.968, RSMo Supp. 2008 (“megaproject” records); § 620.014, RSMo Supp. 2008 (financial records provided to Department of Economic Development).
113 Section 610.010(1), RSMo Supp. 2008.
114 Citizens Elec. Corp. v. Dir. of the Dep’t of Revenue, 766 S.W.2d 450, 452 (Mo. banc 1989) (“When the legislature enacts a statute referring to terms which have had other judicial or legislative meaning attached to them, the legislature is presumed to have acted with knowledge of that judicial or legislative action.”).
115 See Nichols, 978 S.W.2d at 773.
116 Id.; Christiansen, 764 S.W.2d at 952.
117 Compare Chandra, 687 S.W.2d at 807 (refusing to infer a peer review privilege from a qualified immunity statute), with Health Midwest, 965 S.W.2d at 843 (recognizing the creation of a statutory peer review privilege). In State ex rel. Hope House, Inc. v. Merrigan, 133 S.W.3d 44, 49-50 (Mo. banc 2004), the Supreme Court was required to reconcile the confidentiality requirements for domestic violence shelters in § 455.220 with the provision in § 210.140 abrogating most privileges in child abuse and neglect proceedings. In a 4-3 opinion, the Court held that domestic violence records were not discoverable in a child abuse and neglect proceeding notwithstanding § 210.140 because § 455.220 establishes confidentiality protections that are different in kind from privileges. Id. Neither the majority nor the dissenting opinion discussed the relationship between § 455.220 and Rule 56.01’s definition of the scope of discovery.
118 Health Midwest, 965 S.W.2d at 843.
119 Section 324.017, RSMo Supp. 2008. Sections 324.001–.043, RSMo Supp. 2008, concern the Division of Professional Registration and its agencies. Most licensing boards and commissions are assigned to the division. § 324.001.11.
120 Section 324.017.5, RSMo Supp. 2008 (emphasis added).