PENNINGTON v. DOBBS

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Docket Number

No. 28388.

Attorney(S)

Douglas L. Pennington, Forest City, AR, pro se. D. Keith Henson, Paule, Camazine Blumenthal, St. Louis, for Respondent Mark Dobbs. Wallace L. Duncan, Duncan Pierce, Poplar Bluff, for Respondent Danny Whiteley.

Judges

Daniel E. Scott

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Smart Summary

Factual and Procedural Background

Appellant Douglas L. Pennington, a federal inmate in Arkansas, filed a pro se petition against Respondents Mark Dobbs (Sheriff) and Danny Whiteley (Police Chief), alleging that they failed to comply with requests for public records under Missouri's Sunshine Law. The requests were directed to their respective departments. Respondents filed motions to dismiss, with Police Chief denying he was the custodian of the records sought, and Sheriff neither admitting nor denying custodianship but asserting the requests should have been directed to the appointed custodian of records for Butler County or the Sheriff's Department. The trial court initially granted the motions to dismiss by docket entry and later entered a formal order dismissing the case with prejudice. Appellant appealed from this dismissal.

Legal Issues Presented

Whether Appellant's petition sufficiently stated a claim against Sheriff Dobbs for failure to comply with Sunshine Law requests.
Whether Appellant's petition sufficiently stated a claim against Police Chief Whiteley under the Sunshine Law.
Whether the requests were properly directed to and received by the designated custodian of records as required by the Sunshine Law.

Arguments of the Parties

Appellant's Arguments

Appellant contends that his petition states a claim against each Respondent for noncompliance with Sunshine Law requests.
He alleges Sheriff is the custodian of records for his office and that Sheriff failed to respond appropriately to his requests.
He argues that the requests were properly made and that the failure to respond constitutes a violation of the Sunshine Law.

Respondents' Arguments

Police Chief denies he is the custodian of records and claims the proper custodian is the City Clerk, thus Appellant failed to join a necessary party and failed to state a claim against him.
Sheriff neither admits nor denies custodianship but asserts the requests should have been directed to the official custodian of records for Butler County or the Sheriff's Department.
Both Respondents argue Appellant's petition fails to state a claim against them under the Sunshine Law.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Anderson v. Village of Jacksonville, 103 S.W.3d 190 (Mo.App. 2003)	Defines the Sunshine Law's requirement that the custodian of records must receive requests and respond within three business days; outlines elements of a claim under the Sunshine Law; establishes that a motion to dismiss tests the petition's adequacy by assuming truth of allegations.	The court applied Anderson to determine that Appellant's petition against Sheriff stated a claim by alleging the custodian received requests and failed to respond timely, but that the claim against Police Chief failed for lack of allegation that the custodian received the request.
Charlier v. Coram, 774 S.W.2d 518 (Mo.App. 1989)	Supports the proposition that a sheriff is a public governmental body under the Sunshine Law.	The court cited this precedent to support the allegation that Sheriff is a public governmental body and custodian of records for purposes of the Sunshine Law claim.
Oregon County R-IV School Dist. v. LeMon, 739 S.W.2d 553 (Mo.App. 1987)	Recognizes that RSMo. § 610.010 et seq. is commonly known as the Sunshine Law.	Used to identify the statutory framework governing the case.
Nazeri v. Missouri Valley College, 860 S.W.2d 303 (Mo. banc 1993)	Explains that in reviewing motions to dismiss, courts assume the truth of all allegations and construe them liberally in favor of the plaintiff.	The court relied on this principle in evaluating the sufficiency of Appellant's petition.

Court's Reasoning and Analysis

The court began by identifying the three essential elements for a Sunshine Law claim: (1) a request for access to public records, (2) the request was received by the appointed custodian of records, and (3) the custodian failed to respond within three business days. Applying these principles, the court found that Appellant's petition against Sheriff Dobbs sufficiently alleged these elements because the petition stated Sheriff was the custodian, acknowledged receipt of requests, and alleged failure to respond to two of them. The court rejected Sheriff's argument that requests had to be expressly "directed to" the custodian, clarifying that the statute requires only that the custodian receive the request.

Conversely, the court held that Appellant's claim against Police Chief Whiteley failed because the petition did not allege that the custodian of records (the City Clerk) received the request. The court emphasized that under the Sunshine Law, requests must be received by the designated custodian of records. Without such an allegation, the claim cannot proceed. The court noted that failure to plead receipt by the custodian might not be fatal if the governmental body impeded compliance, but Appellant did not make such allegations here.

Accordingly, the court affirmed the dismissal of claims against Police Chief but reversed the dismissal of the claim against Sheriff, remanding for further proceedings consistent with this opinion.

Holding and Implications

The court affirmed the dismissal of Appellant's claims against Police Chief Whiteley but reversed the dismissal of the claims against Sheriff Dobbs.

The direct effect of this decision is that Appellant may proceed with his Sunshine Law claim against Sheriff Dobbs, while his claims against Police Chief Whiteley remain dismissed. The court did not establish new precedent but clarified the application of statutory requirements for Sunshine Law requests, particularly emphasizing the necessity of directing requests to the proper custodian of records. The court also implicitly suggested that simple compliance with statutory duties—such as providing the names and addresses of custodians—could have avoided protracted litigation.

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Douglas L. PENNINGTON, Appellant, v. Mark DOBBS and Danny Whiteley, Respondents.

DANIEL E. SCOTT, Judge.

Appellant, a federal inmate in Arkansas, filed a pro se petition against Respondents Dobbs ("Sheriff") and Whiteley ("Police Chief"), alleging noncompliance with Sunshine Law requests for records from their respective departments.

RSMo. § 610.010 et seq., although containing no "title" provision, is commonly called the Sunshine Law. Oregon County R-IV School Dist. v. LeMon, 739 S.W.2d 553, 555 (Mo.App. 1987).

Respondents filed separate motions to dismiss. Police Chief denied he was custodian of the records sought from him. Sheriff — who neither admitted nor denied he was custodian of his records — acknowledged Appellant's requests, but claimed they should have been addressed to the "Custodian of Records for Butler County, Missouri and/or the Butler County Sheriff's Department." Each Respondent contended Appellant's petition failed to state a claim against him.

Police Chief also claimed Appellant failed to join the records custodian for the City of Poplar Bluff ("City") as a necessary party under Rule 52.04.

The trial court granted Respondents' motions by docket entry. We dismissed Appellant's appeal for want of a final judgment. At Appellant's insistence, the trial court entered a formal order and judgment dismissing the case with prejudice, from which Appellant now appeals.

Although Appellant's appeal points violate Rule 84.04(d), we can discern that Appellant believes his petition states a claim against each Respondent. A petition's sufficiency to state a claim falls within an exception to our rule against considering improperly briefed allegations of error. Rule 84.13(a). Accordingly, we proceed to consider whether the petition states a claim against either Respondent.

Unless otherwise indicated, rule references are to Missouri Rules of Court (2007), and statute references are to Missouri Revised Statutes (2000).

Legal Principles

The Sunshine Law requires each public governmental body to appoint a custodian of its records and, upon request, make available the custodian's identity and location. Section 610.023.1. By statute, therefore, the custodian of records is identified as the single recipient for all requests for access to a governmental body's records. Anderson v. Village of Jacksonville, 103 S.W.3d 190, 198 (Mo.App. 2003). The custodian must act on a records request within three business days after receiving it. Section 610.023.3. Accordingly, Appellant's claim has three elements. His petition needed to allege (1) his request for access to a public record; (2) the custodian of records received the request; and (3) the custodian did not respond within three business days thereafter. Anderson, 103 S.W.3d at 194-95.

A motion to dismiss for failure to state a claim is solely a test of the petition's adequacy. Id. at 193. The petition's averments are assumed true and construed liberally and favorably to the plaintiff, with no attempt made to determine if they are credible or persuasive. Id. "Instead, `the petition is reviewed in an almost academic manner'" to determine if its allegations meet the elements of a recognized or potential cause of action. Id., quoting Nazeri v. Missouri Valley College, 860 S.W.2d 303, 306 (Mo. banc 1993). To reiterate, a court reviewing a motion to dismiss treats all facts alleged as true. Anderson, 103 S.W.3d at 194.

Count I — Appellant v. Sheriff

With respect to Count I, Appellant's petition alleges that Sheriff is a public governmental body under the Sunshine Law and "the custodian of the records of his office." In 2005, Appellant made three written requests to Sheriff for public records. Sheriff answered the first request by his signed letter stating:

Charlier v. Coram, 774 S.W.2d 518 (Mo.App. 1989) so holds.

I received your letter and suggest you research the Sunshine Law. It is my belief that all the things your [sic] are asking for are NOT under the Sunshine Law. Moreover, I lack the legal jurisdiction to give you those items without the consent of the courts.

Sheriff did not respond to Appellant's two subsequent requests.

These allegations, if considered true and construed liberally and favorably, state the elements of Appellant's claim against Sheriff. Anderson, 103 S.W.3d at 194-95. Thus, the trial court erred in dismissing Appellant's Count I claim.

Sheriff complains that Appellant addressed his requests to Sheriff, rather than to Sheriff "as the `custodian of records.'" As we understand this argument, a public governmental body could ignore a Sunshine Law request addressed to the body and received by its appointed custodian, if the requestor failed to "direct" his request to the "custodian of records" as such. Sheriff erroneously cites Anderson for the proposition that "a necessary element" of Appellant's claim "is that his written requests were directed to, and received by" the custodian of records. There is no "directed to" requirement in Anderson's three elements or the statute; only "received by." See Anderson, 103 S.W.3d at 194-95, 198; Section 610.023.3.

Count II — Appellant v. Police Chief

In contrast to Count I, Appellant does not allege that Police Chief or the City's police department is a public governmental body, or that Police Chief is the custodian of records of any such body. Indeed, Appellant pleads that he requested records from Police Chief "in his capacity as Chief of Police," not as the custodian of records.

The petition alleges that Police Chief has custody, possession, care, and control of certain public records, but this characterization fits many public employees who are not designated as a Section 610.023 "custodian of records." Police Chief claims that, by ordinance in conformance with Section 610.023.1, the City Clerk is the City's appointed custodian of records for Sunshine Law purposes.

Under Section 610.023, as previously noted, the custodian of records is the single recipient for all requests for a governmental body's records. Anderson, 103 S.W.3d at 198. Count II is fatally flawed for failing to allege that Appellant's request was received by this custodian:

The statute provides that the request for access is to be " received by the custodian of records of a public governmental body." (emphasis added) 610.023.3, RSMo 2000. The requester's burden includes ensuring that the request for access to records gets to the custodian of records.

Anderson, 103 S.W.3d at 198. Count II was properly dismissed.

Anderson recognizes that failure to plead the custodian's receipt would not be fatal if the governmental body or its agents impeded compliance with the statute. 103 S.W.3d at 199. Appellant does not so allege and the record, at least with respect to Count II, suggests the contrary.

Conclusion

We affirm the judgment insofar as it dismisses Count II and the claims therein against Police Chief. Otherwise, the judgment is reversed and the case remanded for further proceedings not inconsistent with this opinion.

We would be remiss if we did not note that two years of preliminary legal skirmishing, including three trips to this court, might have been avoided had Appellant merely asked Sheriff and City for the names and addresses of their respective custodians — information that Section 610.023.1 requires them to provide without any need for litigation.

PARRISH, P.J., and BATES, J. concurs.