JOHN C. HEMEYER, Sheriff of Cole County, Respondent, v. KRCG-TV,
1999 Mo. App---; 27 Media L. Rep. 1789

March 9, 1999, Opinion Filed

Before James M. Smart, Jr., P.J., Joseph M. Ellis, Judge and Victor C. Howard, Judge. All concur.


KRCG-TV, a Jefferson City television station, appeals from a judgment of the Circuit Court of Cole County declaring that a videotape recorded by security cameras of scenes within non-public areas of the Cole County jail was neither a "public record" as defined in § 610.010(6), nor an arrest record as contemplated in § 610.100, and accordingly was not required to be disclosed pursuant to Chapter 610, commonly referred to as the Sunshine Law.

To provide safety for both the prisoners and the staff at the Cole County Jail, approximately twenty-eight video cameras have been installed throughout the facility. The cameras are connected to monitors that allow the Sheriff's department to observe events that transpire in the facility. The videotaping system records the video feed from only one camera at a time. Normally, the recording system rotates sequentially from camera to camera. When the person watching the monitors suspects a potential problem, he is supposed to push a button to override the sequential rotation of the cameras. This security measure allows the system to record from a particular camera for an extended period of time. The purpose behind the videotaping system is to maintain a safe and secure prison facility. The videotaping system runs continually. Each tape records for four hours, thus the facility uses six tapes per day. The facility maintains a bank of tapes, which are numbered and used sequentially. Each tape is reused approximately every four and one-half days.

On the evening of April 25, 1997, State Representative Mark Richardson was arrested in Cole County, Missouri and charged with driving while intoxicated. One of the security cameras is installed in the booking area of the jail and some part of the booking of Representative Richardson was apparently recorded during the normal sequential rotation of the security system from camera to camera. On April 28, 1997, KRCG issued a written request to Richard Callahan, the Prosecuting Attorney for Cole County, for any and all documentation surrounding the arrest of Richardson including, in particular, "a copy of the booking tape . . taken at the time of his arrest on drunk driving charges on April 25th." The station planned to use the documentation in a news story on the arrest. On May 1, 1997,  John Hemeyer, the Sheriff of Cole County, filed a petition for declaratory judgment seeking a determination whether any portion of the videotape constitutes a public record under Chapter 610. On June 25, 1997, the trial court held an evidentiary hearing. The parties subsequently submitted memorandums of law and on August 26, 1997, the trial court ruled that the videotape pertaining to the booking and incarceration of Mark Richardson was not a public record of a government body made pursuant to law or in connection  with the transaction of official business and is not an arrest record retained by a law enforcement agency. Therefore, the trial court determined that the tape was not subject to the disclosure requirements of Chapter 610. From that ruling, KRCG brings this appeal.

Analysis of KRCG's points relied on, as well as the argument in support of each, reveals the following. In Point I, KRCG argues that the trial court misinterpreted the language of § 610.010(6), leading to an erroneous application of the law. Second, KRCG contends the trial court erred in ruling that the videotape was not a  public record because it was not intended to be permanently retained. The third point asserts that the trial court's ruling is not supported by substantial evidence. And, in its fourth and final point, KRCG argues that the trial court erred in failing to award attorney's fees.

When reviewing a declaratory judgment, our standard of review is the same as in any other court tried case. We will affirm the decision of the trial court "unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law."

KRCG's Points I through III, while couched in different terms, generally assert that the trial court erred in finding that the videotape was not a public record, either by misinterpreting or misapplying the law. We therefore address them together. Resolution of the issues requires interpretation of the applicable statutory provisions. In determining legislative intent, the words used in the statute are to be considered in their plain and ordinary meaning.

Section 610.011.2 provides, in pertinent part, that "except as otherwise provided by law, . . . all public records of public governmental bodies shall be open to the public. . . ." Section 610.023.2 likewise declares that "each public governmental body shall make available for inspection and copying by the public of that body's public records." Sections 610.023-026 generally set forth procedures for requesting documents, providing same for inspection and copying, and the like. Finally, § 610.010(6) defines "public record" as: Any record, whether written or electronically stored, retained by or of any public governmental body including any report, survey, memorandum, or the document or study prepared and presented to the public governmental body by a consultant or other professional service paid for in whole or in part by public funds.

All parties concede that the Cole County Sheriff's Department is a public governmental body and as such, is subject to the disclosure provisions above set forth. They differ on the question of whether the videotape is a "public record" as defined in § 610.010(6). The court below found that the videotape in question was not a record within the meaning of Chapter 610, and consequently was not subject to the disclosure requirements thereof.

KRCG contends the trial court misinterpreted and thereby misapplied the law by overlooking or disregarding the words "or of" contained in § 610.010(6). The statute declares that a public record is "any record, whether written or electronically stored, retained by or of any public governmental body. . . ." KRCG claims the trial court failed to consider the highlighted words in construing the statute not to include the videotape. It argues that the words "or of" have no reference to the word most closely preceding them, "retained." Rather, KRCG would have us insert punctuation, in the form of commas, into the legislative enactment so that it would provide that "any record, whether written or electronically stored, retained by, or of, any public governmental body. . . ." Obviously, this would change the meaning of the statute for it would then read, in effect, "any record retained by any public governmental body or any record of any public governmental body." We decline KRCG's invitation to judicially rewrite the statute.

It is apparent the Legislature did not intend to insert commas, nor did it intend the meaning urged by KRCG. Rather, the plain meaning of the statute is that the record must be retained in order to be a public record, whether by the public governmental body or by a consultant or other professional service if it was paid for in whole or in part by public funds. This is clear based on the subsequent provision of § 610.010(6), which includes in the definition of "public record" "any report, survey, memorandum, or the document or study prepared and presented to the public governmental body by a consultant or other professional service paid for in whole or in part by public funds."

Chapter 610 is remedial in nature in that it was enacted to open government to the scrutiny of the public, and therefore it is conducive to the public good. Appellate courts construe remedial legislation so as to suppress the mischief sought to be prevented. It is crystal clear from a reading of § 610.010(6) that the Legislature did not want governmental bodies to be able to shield records by having them retained by outside organizations. Thus, the wording "retained by or of" was designed to include those records retained by the public governmental body itself, as well as records "of" the governmental body retained by other entities.

This brings us to KRCG's related contention that the trial court erred in finding that the videotape was not a record because it was not intended to be preserved, but rather was reused and taped over routinely. The argument is devoid of merit. The definition of "public record" in § 610.010(6) requires something that is to be "retained." Moreover, the plain and ordinary meaning of the word "record" based on the dictionary definition, when used as a noun, is (1) "preservation in or as in writing," (2) "anything that is written down and preserved, . . ." and (3) "documents preserved as evidence of proceedings. . . ." Webster's New Twentieth Century Dictionary. While these definitions contemplate "writings" or "documents," it is clear from § 610.010(6) that electronically stored information, and video and audiotapes can also be records. However, the definitions do point up the concept that a "record" is something that is intended to be preserved, i.e., "retained," to memorialize what it contains. To constitute a record, the writing or thing must be of the sort that is intended to be useful or beneficial by its retention rather than merely a transitory representation intended for prompt destruction. In the case at bar, the videotape was merely a transitory representation intended for prompt destruction. As such it was not a record for purposes of Chapter 610.

KRCG also attacks a separate finding of the trial court, to the effect that the videotape was not made in connection with official business. Since we have already determined the videotape in question is not a record, it matters not whether it was made in connection with official business. Likewise, KRCG makes a broad brush assertion that the trial court erred in refusing to consider what it describes as "newly discovered evidence." In its post-trial motion, KRCG asserted that it had discovered that another videotape, made in February 1997, containing a depiction of part of the booking of State Representative Phil Tate on a charge of driving while intoxicated, had been retained by the Sheriff's office. KRCG fails to direct this court to anything in the record that even remotely suggests that the trial court failed to consider this "newly discovered evidence." In any event, KRCG acknowledges that the Tate tape was retained by accident, was never intended to be retained, and should have been reused and taped over in the normal course of business. Accordingly, the fact that the tape was retained is irrelevant.

We observe that the Attorney General, as amicus, argues that the videotape is a public record but that it qualifies as an "investigative report," which is defined in § 610.100.1(5) as "a record, other than an arrest or incident report, prepared by personnel of a law enforcement agency, inquiring into a crime or suspected crime . . . in response to . . . evidence developed by law enforcement officers in the course of their duties." Investigative reports "are closed records until the investigation becomes inactive." An investigation becomes inactive when no further action will be taken by the law enforcement agency or officer for any of the following reasons: (a) a decision is made not to pursue the case; (b) expiration of the time to file criminal charges by virtue of the applicable statute of limitations, or ten years after commission of the offense, whichever occurs first; (c) "finality of the convictions of all persons convicted on the basis of the information contained in the investigative report, by exhaustion of or expiration of all rights of appeal of such persons." We reject the Attorney General's contention based on our conclusion that the videotape here in question is not a public record. However, as noted previously, this does not foreclose the possibility that a videotape made by the jail's monitoring system, depending on what it depicted and whether a need for retention existed, could not qualify as a public record and an investigative report....

The judgment of the trial court is reversed and the case is remanded for further proceedings consistent with this opinion.

Joseph M. Ellis, Judge

All concur.