SUPREME COURT OF MISSOURI en banc RACHAL LAUT, f/k/a/ RACHAL GOVRO, ) and JOHN M. SOELLNER, ) ) Appellants, ) ) vs. ) No. SC95307 ) CITY OF ARNOLD, ) ) Respondent. ) Appeal from the Circuit Court of Jefferson County Honorable Gary Kramer, Judge Opinion issued June 28, 2016 Plaintiffs Rachal Laut and John Soellner appeal the trial court’s judgment that Plaintiffs are not entitled to a civil penalty or attorney’s fees under section 610.0271 for Defendant City of Arnold’s (the city) failure to provide an internal affairs report in response to Plaintiffs’ Sunshine Law request because the failure to disclose the report did not result from a knowing or purposeful violation of the Sunshine Law. This Court affirms. What constitutes a knowing or purposeful violation of the Sunshine Law is a question of law. Section 610.027 expressly states that a knowing violation occurs when the public entity “has knowingly violated sections 610.010 to 610.026.” § 610.027.3. To 1 All statutory references are to RSMo Supp. 2013 unless otherwise stated. prove a “knowing” violation, a party, therefore, must do more than show that the city knew that it was not producing the report; as this Court noted in Strake v. Robinwood West Cmty. Improvement Dist., 473 S.W.3d 642, 645 (Mo. banc 2015), section 610.027.2 requires proof that the public entity knew that its failure to produce the report violated the Sunshine Law. § 610.027.3. The standard required to prove a “purposeful” violation under section 610.027 is greater – the party must show that the defendant “purposefully violated section 610.010 to 610.026”, which this Court has defined as acting with “a ‘conscious design, intent, or plan’ to violate the law and d[id] so ‘with awareness of the probable consequences.’” Spradlin v. City of Fulton, 982 S.W.2d 255, 262 (Mo. banc 1998). Applying these standards, the trial court found, after an evidentiary hearing, that the city’s failure to disclose a particular investigative internal affairs report was neither knowing nor purposeful. In so doing, it rejected Plaintiffs’ contention that the city purposefully or knowingly stonewalled the Sunshine Law request and intentionally violated the law. It was up to the trial court to weigh the evidence and resolve the factual question whether the city’s conduct fell within the definitions of knowing or purposeful violations under section 610.027. The judgment is affirmed. I. FACTUAL AND PROCEDURAL HISTORY In 2010, Plaintiffs believed that one or more Arnold police department employees had accessed Plaintiffs’ confidential records in the “Regional Justice Information System” (REJIS) database. In September 2010, Ms. Laut filed a complaint with the Arnold police department, and the department completed an internal affairs investigation. 2 Plaintiffs hired counsel, and on October 11, pursuant to Missouri’s Sunshine Law, section 610.010, et seq., counsel sent the city a letter requesting “any and all incident reports, Internal Affairs investigative reports and records of any type (including e-mail and text messages)” regarding: 1. the use of the REJIS computer network by any department employee, including two specifically named employees, to access information about Plaintiffs, 2. any communications by the two named employees or others with law enforcement regarding a criminal background check of Plaintiffs, 3. the reasons for termination of one of the two employees, and 4. the reasons for disciplinary actions taken against the other employee. The letter stated the attorneys were seeking the documents for the purpose of investigating civil claims. Section 610.100.2 provides that All incident reports and arrest reports shall be open records. Notwithstanding any other provision of law other than the provisions of subsections 4, 5 and 6 of this section or section 320.083, investigative reports of all law enforcement agencies are closed records until the investigation becomes inactive. If any person is arrested and not charged with an offense against the law within thirty days of the person's arrest, the arrest report shall thereafter be a closed record except that the disposition portion of the record may be accessed and except as provided in section 610.120. The city’s attorney replied by letter that there had been no criminal investigation and, therefore, no incident report or arrest record. The city stated there had been an internal affairs investigation but the resulting report and all other documents requested by Plaintiffs were closed under section 610.021 because they contain personnel information about specific employees. Plaintiffs’ counsel again demanded the records on October 22 and claimed 3 Plaintiffs were entitled to them under section 610.100.4, which provides that “any person … may obtain any records closed pursuant to this section or section 610.150 for purposes of investigating a civil claim.”2 On December 2, 2010, Plaintiffs filed their petition for preliminary relief, disclosure of records, statutory damages and attorney’s fees. Plaintiffs claimed that the records were part of a criminal investigation and were open records because, whatever the original motivation for the investigation, under federal law someone who “intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains … information from any protected computer” commits a federal crime that is punishable by fines or imprisonment. 18 U.S.C. § 1030(a)(2). Plaintiffs alleged that the city knowingly or purposely violated the Sunshine Law and, therefore, was subject to the statutory remedies of civil penalties, costs, and attorney’s fees. Once it is determined that a governmental body is subject to the Sunshine Law and that it has claimed that a record is closed, the burden is on the governmental body to demonstrate that the Sunshine Law does not require disclosure. See section 610.027.2. Plaintiffs filed a motion for summary judgment, claiming that the internal affairs investigation was conducted in response to complaints of improper or criminal activity, and once the investigation was complete all records relating to the investigation were public under section 610.100.2, and that the city had failed to show an exemption applied. 2 Although the city sought its counsel’s legal advice and counsel wrote to Plaintiffs in response to their request to explain the city’s belief that certain documents were not subject to disclosure, the city did not file suit seeking a judicial interpretation of its 4 The trial court overruled the motion. The city then moved for summary judgment, claiming the investigation was not a criminal investigation but was limited to determining the employees’ fitness to perform their jobs and the resulting report related to disciplinary matters that are exempt from disclosure. In support of its motion, the city submitted the police chief’s affidavit stating that, after receiving a complaint from Plaintiffs that two employees had “abused their access to REJIS for personal reasons,” he “ordered that an Internal Affairs investigation be commenced for the limited purpose to determine the fitness of the employees to perform their respective duties. … I have not and will not produce the personnel records or closed Internal Affairs report of my employees pursuant to City Ordinance.” The trial court granted the city’s motion. Plaintiffs appealed, and the court of appeals held there was a dispute whether the internal affairs investigation was a criminal investigation and remanded the case for the trial court to conduct an en camera review of the internal affairs report and of other documents responsive to the two requests relating to employees improperly accessing REJIS and communicating about background checks. Laut v. City of Arnold, 417 S.W.3d 315, 320-21 (Mo. App. 2013). The court of appeals, however, affirmed the trial court grant of summary judgment “as it relates to any public records other than investigative reports, containing only information responsive to Appellants’ requests for the reasons for discipline of [the two named employees].” Id. On May 7, 2014, the trial court held a hearing at which the city’s counsel attested obligations under the Sunshine Law, nor did they seek a formal attorney general or city attorney opinion as permitted by section 610.027.6. 5 that the records were “a full and accurate representation of all of the documents that are contained within Ms. Laut’s personnel records and all records that are pertaining to the case.” After reviewing the records en camera, the trial court found that, “with the exception of the Internal Affairs report,” all the other records were personnel records clearly exempt from disclosure under sections 610.021(3) relating to disciplinary actions and 610.021(13) relating to personnel records. With regard to the internal affairs report, the trial court found that the city’s “contention that the Internal Affairs report is in whole, or in part, a personnel record is wholly inaccurate.” The trial court stated that the internal affairs investigation was initiated after a complaint of alleged criminal activity and the investigation became inactive when the subject of the investigation resigned, making the internal affairs report a record of a closed investigation that must be disclosed under section 610.100.2. See also § 610.011 (“Except as otherwise provided by law, … all public records of public governmental bodies shall be open to the public for inspection and copying as set forth in sections 610.023 to 610.026[.]”). Accordingly, the trial court ordered the disclosure of the report with a portion related to employees’ timesheets redacted. Apparently presuming that Plaintiffs would seek fees under section 610.100.5, the trial court set a hearing “to determine whether, pursuant to § 610.100.5, Defendant City of Arnold’s failure to disclose the Internal Affairs report was ‘substantially unjustified under all relevant circumstances’ such that Defendant should be required to pay the reasonable costs and attorney’s fees of Plaintiff.” Instead, Plaintiffs filed an application for attorney’s fees and a civil penalty under section 610.027, which provides for 6 attorney’s fees as well as for a fine in an amount up to $5,000 for a purposeful violation or attorney’s fees and a fine in an amount up to $1,000 for a knowing violation in addition to other remedies provided by statute. 3 A hearing was held on that claim at which both parties presented evidence. The trial court issued its judgment denying the civil penalty and attorney’s fees because, it said, “this Court cannot on this record find that the Defendant City of Arnold either knowingly or purposefully violated the provisions of RSMo §§ 610.010-610.035.” Plaintiffs appealed. The court of appeals transferred the case to this Court after opinion under Mo. Const. art. V, sec. 10. II. STANDARD OF REVIEW “An issue of statutory interpretation is a question of law, not fact.” Treasurer of State-Custodian of Second Injury Fund v. Witte, 414 S.W.3d 455, 460 (Mo. banc 2013). Accordingly, the meaning of the terms knowing and purposeful as set out in section 610.027 is a question of statutory interpretation and, so, is a question of law for this Court. The scope of the application of section 610.010 to section 610.200 “shall be 3 Section 610.100.5 allows a plaintiff to petition for disclosure of an investigative report, “which would otherwise be closed pursuant to this section[,]” and permits attorney’s fees if the decision not to open the report is “substantially unjustified.” Section 610.027 provides remedies in an action to enforce the Sunshine Law requirements of sections 610.010 to 610.026 “in addition to those [remedies] provided by any other provision of law.” It provides that “[u]pon a finding … that a public governmental body … has knowingly violated sections 610.010 to 610.026, the public governmental body … shall be subject to a civil penalty in an amount up to one thousand dollars. … the court may order the payment by such body or member of all costs and reasonable attorney fees .… Upon a finding … that a public governmental body … has purposely violated sections 610.010 to 610.026, the public governmental body … shall be subject to a civil 7 liberally construed and their exceptions strictly construed to promote” the public policy of open records. § 610.011. But where, as here, the issue is whether a penalty and attorney’s fees should be imposed, the “portions of the Sunshine Law that allow for imposition of a civil penalty and an award of attorney fees and costs are penal in nature and must be strictly construed.” Strake, 473 S.W.3d at 645 n.5,citing Spradlin, 982 S.W.2d at 262. Whether the conduct of the city brings it within the scope of the statutory definitions of knowing or purposeful conduct is a question of fact. State v. Selman, 433 S.W.2d 572, 575 (Mo. 1968) (question of intent is fact question for the jury).4 Such factual determinations are reviewed by this Court under the standard set out in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Under that standard, it was up to the trial court, as fact finder, to determine whether the city officials’ conduct was knowing or purposeful as those terms are used in section 610.027 when the city declined to release the internal affairs report. See, e.g., Spradlin, 982 S.W.2d at 263 (the record supported trial court’s decision there was no purposeful violation of the Sunshine Law); R.L. Polk & Co. v. Missouri Dep’t of Revenue, 309 S.W.3d 881, 884, 887 (Mo. App 2010) (same). Because Plaintiffs argued that the application of the statute to the facts was a question of law to be determined de novo, they did not set out in their point relied on penalty in an amount up to five thousand dollars. … the court shall order the payment by such body or member of all costs and reasonable attorney fees ….” §§ 610.027.3-.027.4. 4 See also American Family Mut. Ins. Co. v. Pachetti, 808 S.W.2d 369, 371 (Mo. banc 1991) (what an insured expected or intended is a question of fact); Watson v. Landvatter, 517 S.W.2d 117, 121-22 (Mo. banc 1974) (intention of a testator is a factual question). 8 whether they believe that the judgment was not supported by substantial evidence, or whether they believe it was against the weight of the evidence. This Court has recently reiterated that these two standards are separate and distinct and that a party must set out these claims in separate points relied on. Pasternak v. Pasternak, 467 S.W.3d 264, 270 n.4 (Mo. banc 2015); Ivie v. Smith, 439 S.W.3d 189, 199 n.11 (Mo. banc 2014). Because Plaintiffs do raise these questions in the argument section of their brief and the city did not object to their absence from the point relied on, this Court, nonetheless, has exercised its discretion to review the record to determine whether the judgment is supported by substantial evidence and is not against the weight of the evidence. A trial court’s judgment is not supported by substantial evidence when “there is no evidence in the record tending to prove a fact that is necessary to sustain the circuit court’s judgment as a matter of law.” Ivie, 439 S.W.3d at 200. “When reviewing whether the circuit court’s judgment is supported by substantial evidence, appellate courts view the evidence in the light most favorable to the circuit court’s judgment and defer to the circuit court’s credibility determinations[,] … no contrary evidence need be considered on a substantial-evidence challenge … [and] [c]ircuit courts are free to believe any, all, or none of the evidence presented at trial.” Id. “A claim that the judgment is against the weight of the evidence presupposes that there is sufficient evidence to support the judgment[,]” and a trial court’s “judgment is against the weight of the evidence only if the circuit court could not have reasonably found, from the record at trial, the existence of a fact that is necessary to sustain the judgment.” Id. at 206 (internal quotations omitted). “Appellate courts should exercise the power to set aside a decree or judgment on the 9 ground that it is ‘against the weight of the evidence’ with caution and with a firm belief that the decree or judgment is wrong.” Murphy, 536 S.W.2d at 32. III. KNOWING AND PURPOSEFUL VIOLATIONS OF SUNSHINE LAW Section 610.027 allows any aggrieved person to seek judicial enforcement of the Sunshine Law and provides the remedies of civil monetary penalties, costs and attorney’s fees for knowing or purposeful violations of that law. The city does not appeal the trial court holding that the city violated the Sunshine Law and should have produced a redacted version of the internal affairs report. The question on appeal is limited to whether the trial court erred in finding that the violation was not purposeful or knowing as those terms are used in section 610.027, which states that: 3. Upon a finding by a preponderance of the evidence that a public governmental body or a member of a public governmental body has knowingly violated sections 610.010 to 610.026, the public governmental body or the member shall be subject to a civil penalty in an amount up to one thousand dollars. If the court finds that there is a knowing violation of sections 610.010 to 610.026, the court may order the payment by such body or member of all costs and reasonable attorney fees to any party successfully establishing a violation. The court shall determine the amount of the penalty by taking into account the size of the jurisdiction, the seriousness of the offense, and whether the public governmental body or member of a public governmental body has violated sections 610.010 to 610.026 previously. 4. Upon a finding by a preponderance of the evidence that a public governmental body or a member of a public governmental body has purposely violated sections 610.010 to 610.026, the public governmental body or the member shall be subject to a civil penalty in an amount up to five thousand dollars. If the court finds that there was a purposeful violation of sections 610.010 to 610.026, then the court shall order the payment by such body or member of all costs and reasonable attorney fees to any party successfully establishing such a violation. The court shall determine the amount of the penalty by taking into account the size of the jurisdiction, the seriousness of the offense, and whether the public 10