Judge dismisses open records lawsuit

Monday, July 19, 2010 | 8:13 p.m. CDT

COLUMBIA — A judge dismissed Monday an open records lawsuit filed by a Columbia attorney against the city and a Columbia police custodian of records.

Attorney Stephen Wyse filed the lawsuit in October, claiming that Krista Shouse-Jones, the custodian of records at the Columbia Police Department, violated Missouri Sunshine Law.

Wyse submitted a Sunshine Law request to Shouse-Jones on Oct. 9 after spending several hours at the police station trying to meet with Nicole Palmer, a client.

Palmer was being held in connection with a murder in the parking lot of a Red Roof Inn. She was not charged with the murder, but she was later charged with two felonies: hindering prosecution and possession of a controlled substance with intent to distribute.

Wyse said he was not allowed to see Palmer. Later that day, he submitted the Sunshine request for surveillance footage from the Police Department lobby and holding area.

Shouse-Jones responded to the request on Oct. 21 with a letter that said it would cost $2,739.73 and would take three weeks to produce the footage.

Soon after, Wyse sued, claiming that Shouse-Jones violated the Sunshine Law by failing to respond to his request within three business days and by miscalculating the cost of fulfilling his request.

But, in Monday’s dismissal, Boone County Circuit Judge Kevin Crane said Wyse did not have a right to all the footage he requested because it was relevant to the ongoing investigation of criminal charges still pending against Palmer in Callaway County.

Missouri Sunshine Law states that, with few exceptions, investigative reports are closed records until the investigation becomes inactive.

But Wyse said the footage he requested is not an investigative report at all.

He argued that the Sunshine Law states that an investigative report is no longer an investigative report once an arrest is made. Rather, Wyse said, it becomes an arrest record.

Because the Sunshine Law states that all arrest records are open records, Wyse said, he should be allowed access to surveillance footage from the police station.

Milt Harper, Shouse-Jones's attorney, and Cavanaugh Noce, the attorney for the city, had a different interpretation of the law. They said the surveillance footage is indeed an investigative record and would remain an investigative report until criminal charges are resolved.

Once the charges are resolved, Harper said, the investigation becomes inactive, and investigative reports become open records.

Because Palmer still faces felony charges in Callaway County, Harper and Noce argued, the investigation is still active, and surveillance footage from the police station remains closed to the public.

Harper presented a letter from Assistant Prosecuting Attorney Andrew Scholz to support his argument.

Scholz’s letter states his objection “to any release of interrogation videos or police reports to Stephen Wyse.”

Crane sided with Harper, Noce and Scholz.

“Investigative reports are active until the case is finally disposed, and you’re not getting those,” Crane told Wyse.

Harper said that parts of the surveillance footage Wyse requested might not pertain to the investigation and, therefore, might be available under Sunshine Law.

For example, in March, the Missourian was able to acquire footage without audio of Palmer in a cell by submitting a Sunshine Law request that omitted the request for video from the station's booking room.

"I think Wyse has a right to anything that's not investigative," Harper said.

For example, he said, footage of Wyse in the police station lobby would not seem to be investigative in nature. Wyse would need to narrow his request to obtain more specific pieces of footage, Harper said.

"You have to say, 'I want a chocolate cone,' before I know what to give you," Harper said. "He just says, 'I want ice cream.'"

At Monday's hearing, Crane asked Wyse if he wanted to define his request more specifically.

Wyse said he turned down that opportunity because re-defining his request would not help him to obtain the footage he wants. He said he is seeking footage that the court, under its definition of an investigative report, still would not allow him to have.

Wyse disagreed with the court's definition and said it runs against the statutes of the Sunshine Law. He plans to appeal Crane's decision.

“That is specifically contrary to the specific command of the legislature,” Wyse said. “But the court did not seem too persuaded by that.”

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