Once again, the Missouri Court of Appeals finds itself considering whether or not records generated as part of an internal police probe should be made public.
The question this time: Whether public employees like police officers can claim their right to privacy is being violated by the release of records that a court has said are subject to the Missouri sunshine law.
The case is rooted in a 2006 probe into St. Louis Metropolitan Police Department officers who attended World Series games at Busch Stadium using tickets they had seized from scalpers. Eventually, 16 officers and other department employees were disciplined.
Activist John Chasnoff filed an open records request for materials from that investigation, and sued when he did not receive the material. In 2010, a judge ruled in his favor and ordered the records released. Officers who had been interviewed as part of that investigation filed a separate lawsuit, claiming such a release would violate their right to privacy.
The two sides couldn't even agree on whether such a right exists around public records.
Mary Bruntrager, an attorney for the officers, conceded that the right to privacy is not specifically granted by the Missouri constitution. Instead, it's been developed by case law going all the way back to 1911. She said her clients had a legitimate expectation of privacy for a number of reasons.
First, she said, the officers believe the records are not subject to disclosure under the sunshine law because they related to employee discipline. And second, the department's own policy forbids disclosure of those records.
Judge Lawrence Mooney wanted to know, how do you resolve the conflict between the right to privacy and the assumption built into the sunshine law that public records are open?
"The legislature has resolved it," Bruntrager answered. "Where the legislature has allowed an exemption to the sunshine law, then the employee has the right to privacy and the public does not have the right to that information."
The problem, argued Tony Rothert, the legal director of the American Civil Liberties Union of Missouri, is the officers aren't claiming that the records are protected under the sunshine law. They are instead claiming they have a separate right to privacy -- but can't point to any state law or court ruling giving them that protection.
"We believe very strongly that Judge [Philip] Heagney was correct in 2010 when he found that these are open records under the sunshine law," said Rothert, who is representing Chasnoff. "But even if he was wrong, that still does not create an expectation of privacy. There might be a hope of privacy, there might be a possibility of privacy, but it can’t rise to a constitutionally enforceable right."
Essentially, Rothert said, you can't claim that something is protected constitutionally when protection isn't guaranteed under something like the sunshine law.
Mooney, who was on the 2013 appeals panel that ordered the court to consider whether the officers had the right to privacy, will decide the case along with Chief Judge Angela Quigless and Judge Mary Hoff.
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