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Family of slain patrolman wins records ruling

A Missouri appeals court has overturned a ruling denying the release of records relating to the 1994 shooting death of a Missouri State Highway Patrolman, finding that federal law does not preempt the Missouri Sunshine Law in the case.

A three-judge panel from the Missouri Court of Appeals Western District on Nov. 5 reversed a lower-court ruling that records sought by the widow and daughter of the deceased patrolman, Cpl. Bob Harper, are closed under the federal Freedom of Information Act.

The plaintiffs in the case are Kimberly Harper and Sharon Kay Harper, the daughter and widow, respectively, of Cpl. Harper.

He was shot and killed in his home in 1994. Both the MSHP and FBI opened investigations into the shooting.

In July 2015, Kimberly Harper sought records pertaining to her father’s arrest of Robert Joos in McDonald County in 1994. A footnote in the opinion identified an associate of Joos as the person who allegedly shot Cpl. Harper.

According to the ACLU of Missouri, which represented the plaintiffs, Cpl. Harper arrested Joos six weeks before Harper’s death. The ACLU said the associate of Joos was charged with the crime but never apprehended, and is now believed to be dead.

According to the opinion, written by Judge Thomas H. Newton, the dispute in the Harpers’ case stemmed from the inclusion of information from FBI reports in the MSHP’s records.

After Kimberly Harper failed to receive the records she’d requested, she followed up with the MSHP in September 2015 to check on her request. Her mother subsequently also submitted a request for records to the MSHP for records pertaining to her husband’s death and the related investigation.

The agency disclosed records related to Joos in October 2015, but it informed Sharon Kay Harper the records responsive to her request were closed.

In April 2016, the Harpers sued the MSHP and the McDonald County prosecuting attorney. Cole County Circuit Judge Jon Beetem denied the MSHP motion to dismiss, finding that under the Sunshine Law, the passage of 10 years after Cpl. Harper’s shooting rendered the ongoing investigation inactive and made the file a public record.

The highway patrol gave the plaintiffs most of the 2,200 documents relevant to the request regarding Harper’s death, as well as a log of records it claims were closed. It withheld two reports written by MSHP investigators who summarized the contents of FBI reports about the case. Those two reports also included attachments of the actual FBI reports.

The agency declined to release the reports, arguing that they were prepared by the FBI and not within the state’s jurisdiction to release.

After a bench trial, Beetem dismissed the prosecuting attorney from the lawsuit for lack of prosecution and ruled in favor of the MSHP, holding that the records retained or referenced in its investigative file are closed under both the Sunshine Law and FOIA.

The Harpers appealed, arguing that Beetem erroneously applied FOIA in his ruling to close the records. They argued that the Sunshine Law, not FOIA, governs the status of the records.

The Western District panel ruled that the MSHP-written narratives do not fall within FOIA’s purview because they were not created or obtained by the FBI and were not within the FBI’s possession at any time.

“There is no dispute these records were retained by the MSHP and requested under the Sunshine Law,” Newton said. “FOIA does not preempt the Sunshine Law, and to construe FOIA to embrace state agency retained records, requested under state law, would be to extend the reach of FOIA beyond what we believe Congress intended.”

The panel held that Beetem erred in finding that the records at issue fall under FOIA exemptions and are protected from disclosure.

“The misapplication of a FOIA exemption to circumvent the Missouri Sunshine Law is to disregard the basic principles of the supremacy clause and preemption doctrine,” Newton said. “The records at issue do not fall under a FOIA disclosure exemption.”

Judges Alok Ahuja and Thomas N. Chapman concurred.

In a statement, Tony Rothert, legal director of the ACLU of Missouri, praised the ruling, saying “The Sunshine Law is clear and cannot be disregarded as government officials see fit. All Missourians are guaranteed access to public records upon request.”

A spokesman for the Missouri Attorney General’s Office, which represented the MSHP, did not respond to a request for comment.

The case is Harper et al. v. Missouri State Highway Patrol et al., WD82465.