intervention, Chasnoff’s ability to enforce his judgment would have been foreclosed. The trial
court concluded as a matter of law that Chasnoff’s defense to the police officers’ action was part
and parcel of his establishment of the Board’s knowing violation of the Sunshine Law. Asa
result of the Board’s conduct, the trial court awarded Chasnoff $100,000 in attorneys’ fees after
reviewing the reasonableness of the hourly rates, total hours expended, success achieved, the
complexity of the litigation, and the like related to “vindication of [Chasnoff’s] Sunshine Law
interests.”

Section 610,027.3 provides in relevant part that “[i]f the court finds that there is a
knowing violation of sections 610.010 to 610.026, the court may order the payment by such
[public governmental] body or member [of a public governmental body] of all costs and
reasonable attorney fees to any party successfully establishing a violation.” The trial court
awarded attorneys’ fees under this section.

Further, the trial court is considered an expert on attorney’s fees, and the court has
discretion to determine the fee award. Klinkerfuss v. Cronin, 289 S.W.3d 607, 613 (Mo. App.
E.D. 2009). We will reverse the trial court’s award only when we find an abuse of discretion.
id. “A court abuses its discretion when it awards an amount so arbitrarily arrived at, or so
unreasonable, as to indicate indifference and a lack of proper consideration.” Jd. The
complaining party carries the burden of establishing an abuse of discretion. Id.

The Board’s conduct in failing to reveal, until very late in the litigation, the parallel
criminal and IAD investigatory files, along with its sham consent agreement with the police
officers that bypassed Chasnoff in order to avoid the ordered records disclosure, support an
award of attorneys’ fees to Chasnoff for the enforcement of his 2010 judgment under the

Sunshine Law.

20



The trial court found “that at no time did the IAD investigators promise or represent that
the so-called Garrity statements would not become public record or would not be disclosed for
legitimate purposes. . . . [T]he consistent representation was only that the statement could not be
used in any subsequent criminal prosecution.” The trial court observed that the oral statements
of the IAD investigators regarding the potential use of the police officers’ Garrity statements did
not vary materially from the written “advice of rights” form, which contained no representation
that the police department would treat the recorded statements as secret. Notwithstanding the
evidence of the police department’s custom regarding use and disclosure—or more precisely
non-disclosure—of Garrity statements, the trial court found that no promises of secrecy were
made to the police officers.

Lieutenant Scott Gardner, commander of IAD, testified that separate IAD investigators
would conduct separate investigations into alleged misconduct for internal purposes and for
purposes of potential criminal prosecution. The investigator looking into potential criminal
activity would share information with the IAD officer conducting the internal investigation, but
information would never flow the other way, from the internal investigation to the criminal
investigation.

Lieutenant Jack Huelsmann, now retired, served as the deputy commander of IAD during
the time relevant to this case. He likewise testified that the investigator on the criminal side
would share information with the investigator on the internal side, but that the internal
investigator would never share information learned through a Garrity statement with the criminal
investigator, Lieutenant Huelsmann then testified on cross-examination as follows:

Q. And were any of the plaintiffs [police officers] ever advised that the records would

not be disclosed by the police department under the Sunshine Law?
A. Using that terminology, I don’t believe so.

14



to intervene, and dismissed the cross-appeal. Id. We left the trial court’s order staying release of
the records in place so that the police officers might pursue an independent action concerning
their alleged privacy and property rights in the records at issue. Id.

Following our decision in Chasnoff J, the police officers filed suit in Ishmon v. St. Louis
Board of Police Commissioners in the Circuit Court of the City of St. Louis to prevent the
Board’s disclosure of the police officers’ personnel and disciplinary records. Chasnoff moved to
intervene, and the trial court granted his intervention. Without Chasnoff’s participation, the
police officers and the Board then entered into a consent judgment whereby the Board agreed not
to release the records that the trial court had previously ordered released in Chasnoff’s action
against the Board. Chasnoff appealed. In Jshmon y, St. Louis Board of Police Commissioners,
415 S.W.3d 144 (Mo. App. E.D. 2013), and the companion case of Chasnoff v. Mokwa, 415
S.W.3d 152 (Mo. App. E.D. 2013) (“Chasnoff II”), decided at the same time, this Court found
that Chasnoff’s asserted interest and rights in disclosure of the records at issue were never
adjudicated in the proceeding and were disregarded without determination by the consent
judgment. /shmon, 415 S.W.3d at 151; Chasnoff IT, 415 S.W.3d at 158-59, We vacated the
consent judgment and remanded the causes for adjudication of all parties’ interests and rights by
one newly-assigned judge. /shmon, 415 S.W.3d at 151; Chasnoff II, 415 S.W.3d at 159. The
stay order concerning the release of the records at issue remained in effect. Id.

On remand, the trial court consolidated the Chasnoff and Ishmon cases and adjudicated
all issues following a bench trial in April 2014. The subject of the police officers’ claim for
relief consists of 59 documents from the IAD investigation, namely interview transcripts and
recordings of the interviews with each of the 19 police officers in the Jshmon case, the “advice of

rights” form executed by 16 officers, seven officers’ consent-to-discipline forms, a computerized
8 y iP



As the trial court determined, the Board’s conduct during the course of this extensive
litigation establishes its knowing violation of the Sunshine Law. Chasnoff’s intervention in the
police officers’ action was undoubtedly necessary to enforce his 2010 judgment ordering
disclosure of the records at issue. The trial court did not abuse its discretion in awarding
attorneys’ fees under section 610.027.3. We deny the Board’s first point. Because we conclude
that the trial court properly awarded attorneys’ fees under the Sunshine Law, we need not
consider the Board’s second point, and so deny it as moot.®

Conclusion

We conclude that the police officers have no right under the Sunshine Law, the U.S. or
Missouri Constitutions, common law, or Missouri statutes to compel closure of public records
regarding their substantiated misconduct in the performance of their official duties.

Further, we find that while the police officers may have assumed, or hoped, that their
Garrity statements would remain secret if used only for internal purposes, no one from the police
department promised them anything more than that the statements would not be used against
them in a subsequent criminal prosecution. Thus, the police officers have no right to compel
closure of the records at issue on this basis.

Finally, the Board’s conduct in failing to reveal the parallel criminal and IAD

investigatory files and its sham consent agreement with the police officers, which sought to

® We do, however, find additional support for the award of attorneys’ fees to Chasnoff under an exception to the
American Rule on attorney’s fees. Missouri adheres to the American Rule, which means that generally, absent
statutory authorization or contractual agreement, each litigant pays his or her own attorney’s fees. Klinkerfuss, 289
S.W.3d at 618. The learned trial judge determined that the collateral-litigation exception to the American Rule also
justified the award of attorneys’ fees. We agree with the trial court’s conclusion that an exception to the American
Rule applies, but we would apply the exception for special circumstances or very unusual circumstances arising
from the Board’s misconduct. The Board compounded its knowing violation of the Sunshine Law when it failed to
timely reveal its parallel criminal and internal investigatory files and when it entered into a sham consent agreement
with the police officers, That agreement sought to circumvent Chasnoff in order to prevent disclosure of the very
records that the trial court had previously ordered disclosed. The Board’s agreement with the police officers thus
necessitated another appeal, resulting in this Court’s decision in Chasnoff I.

21



“[T]he[se] exemptions allow the public body to close disciplinary records at its discretion.”
Laut, 417 8.W.3d at 321, “Section 610.021 is ‘permissive’ because it describes records that may
be closed.” Chasnoff I, 334 S.W.3d at 151 (emphasis in original). The Sunshine Law does not
prohibit the Board from disclosing the records at issue. Jd. To the contrary, “{nJothing in
sections 610.010 to 610.028 shall be construed as to require a public governmental body to hold
a closed meeting, record or vote to discuss or act upon any matter.” Section 610.022.4. “The
Board has always had the authority and discretion to disclose the documents under the Sunshine
Law.” Chasnoff I, 334 S.W.3d at 151.

Thus, the police officers’ argument that subdivisions (3) and (13) of section 610.021,
along with the police department’s custom and practice or promise, led them to believe that their
Garrity statements and other disciplinary records would never be disclosed misses the mark. A
belief that statements were for internal use by the police department, and not for criminal
prosecutions, does not equate to a promise of secrecy. The police officers may have assumed, or
hoped, that their statements would remain secret if used only for internal purposes. But the trial
court expressly found that no one from the police department promised the police officers
anything more than that the statements would not be used against them in a subsequent criminal
prosecution, and we find no evidence to the contrary in the record before us. Thus, such a belief
of secrecy was not reasonable on the part of the police officers. And we also agree with the trial
court’s conclusion that had such a promise been made, it would not create any enforceable rights
in the police officers. The police department’s administrative practices would not trump the
Sunshine Law. We deny the police officers’ second point.

The Board’s Appeal: Chasnoff v. Mokwa

18



Missouri, and any other statutory right to privacy that might be infringed by disclosure of the
disputed records.

The trial court first examined the privilege that exists pursuant to Garrity v. New Jersey.
A limited evidentiary privilege exists to prevent the use of compelled statements in later criminal
prosecutions. Garrity v. New Jersey, 385 U.S. 493, 500 (1967). The U.S. Supreme Court held
that “the protection of the individual under the Fourteenth Amendment against coerced
statements prohibits use in subsequent criminal proceedings of statements obtained under threat
of removal from office, and that it extends to all, whether they are policemen or other members
of our body politic.” Jd. (emphasis added). Garrity, however, recognizes no constitutional right
to prevent disclosure to the public of such statements under an open-records law.

Aside from Garrity, the police officers have cited no right under any specific
constitutional provision that they contend would prevent the public disclosure of the records at
issue, The trial court stated that, “[o]n the whole, the {cJourt is unable to conclude that there is in
reality an overarching constitutional right to privacy of employment records of public
employees. Any right of privacy of public employees would at most extend to purely personal
facts (e.g., health history).” (Emphasis in original). “Neither the federal nor the Missouri
constitutions expressly provide a right of privacy.” North Kansas City Hosp. Bd. of Trustees v.
St. Luke’s Northland Hosp., 984 8.W.2d 113, 121 (Mo. App. W.D. 1998)(quoting Cruzan ex rel.
Cruzan y. Harmon, 760 S.W.2d 408, 417 (Mo. bane 1988)). “To the extent a Constitutional right
to privacy has been recognized, that right has been extended to protect an individual's interest in
preventing the disclosure of personal matters.” Id. (emphasis in original). The trial court
reviewed the documents in camera, and made no finding about the character of the records. The

documents have not been filed with this Court. The police officers have not identified the nature



The police officers assert on appeal that the trial court erred in concluding that they have
no enforceable constitutional, statutory, or common-law right to privacy in disciplinary records
pertaining to their official duties. They also argue that the trial court erred in finding that the
Board’s practice and advice to officers about using their Garrity statements only for internal
purposes did not amount to a promise of non-disclosure giving rise to a right to privacy.

The Board argues on appeal that the trial court erred in awarding attorneys’ fees to
Chasnoff for the entirety of the consolidated cases under either the Sunshine Law or the
collateral-litigation exception to the American Rule.

The Police Officers’ Appeal: Ishmon v. St. Louis Board of Police Commissioners

In reviewing a court-tried case, we will reverse the judgment only if no substantial
evidence supports it, the judgment is against the weight of the evidence, or it erroneously
declares or applies the law. Murphy v. Carron, 536 8.W.2d 30, 32 (Mo. banc 1976).

In their first point on appeal, the police officers claim the trial court erred in concluding
that they have no enforceable constitutional, statutory, or common-law right to privacy in
disciplinary records pertaining to performance of their official duties because Missouri
recognizes a police officer’s right to privacy in those records when the records are not part of a
criminal investigation and recognizes an independent cause of action to enforce that right. They
argue that all 59 records at issue constitute personal and private information.

In their petition against the Board, the police officers sought, under section 610.030, a
declaration of law and a permanent injunction enjoining the Board from disclosing the personnel
records of the police officers, which they alleged the Board lawfully closed under section
610.021 of the Sunshine Law. The police officers asserted that they had a “legally protected

privacy interest in their personnel records” as well as “constitutional protections against



summary of the investigation results covering 16 officers, and IAD administrative reports.
Officer Ishmon testified that he wanted the records closed because their disclosure would cause
him embarrassment. Officer Menendez testified in a conclusory manner that disclosure would
damage the reputation of the individual officers and the department. But no police officer
adduced factual evidence that the accusations were false. All other plaintiff police officers
agreed that if they were to testify, their testimony would match that of Officers Ishmon and
Menendez.

The trial court concluded that the June 2010 Chasnoff judgment ordering disclosure of
the subject records was a final judgment, not subject to collateral attack by the police officers in
their case, The trial court stated that the records are public records subject to disclosure unless
the police officers could demonstrate an independent right to compel closure, The court
determined that the police officers have no legally cognizable right to privacy that precludes
release of the Board’s records regarding the investigation and discipline of the police officers for
misconduct in the handling of evidence seized incident to the 2006 World Series ticket-scalping
arrests. The trial court also found that the Board’s entry into the consent judgment with the
police officers constituted “a palpable effort to evade the judgment in Chasnoff,” that Chasnoff’s
intervention in Jshmon was essential to preserve the judgment in Chasnoff, and that without
intervention, Chasnoff’s ability to enforce the earlier judgment ordering disclosure of the records
would have been foreclosed, As a result, the court awarded Chasnoff $100,000 in attorneys’ fees

from the Board. The police officers and the Board appeal.**

* Six of the 19 police officers failed to appear for trial, and the court dismissed their claims with prejudice, releasing
the records pertaining to those six police officers to Chasnoff and the public at large. No party has appealed the trial
court’s ruling in that regard,

° The trial court entered a stay of its judgment as to the documents from the IAD investigation challenged by the
thirteen officers on appeal.



In two points on appeal, the Board asserts, first, that the trial court erred in awarding
attorneys’ fees to Chasnoff for the entirety of the consolidated cases under the Sunshine Law
because Chasnoff did not specifically plead or move for attorneys’ fees, and because the fee
award included fees incurred for Chasnoff’s intervention in the separate declaratory-judgment
action filed by the police officers against the Board, which did not plead a Sunshine Law
violation,

Alternatively, the Board argues in its second point that the trial court erred in awarding
attorneys’ fees to Chasnoff for the entirety of the consolidated cases under the collateral-
litigation exception to the American Rule. The Board contends that: (A) the police officers’
action did not constitute collateral litigation by a third party because the police officers were
parties to the Chasnoff case; (B) the police officers’ action in Ishmon was not the natural and
proximate result of any wrong or breach of duty by the Board because the Court of Appeals
recognized in Chasnoff I the police officers’ right to file their action; and (C) Chasnoff’s
intervention in the police officers’ action was voluntary and not necessarily incurred to protect
him from injury.

Chasnoff’s 2007 petition requested an award of attorneys’ fees. Chasnoff also moved for
attorneys’ fees in February 2009, and filed a statement of attorneys’ fees in June 2014 as ordered
by the trial court. The trial court found that the “Board knowingly violated the Sunshine Law in
its conduct in regard to the consolidated cases.” The trial court cited the Board’s entry into the
consent judgment with the police officers as “a palpable effort to evade the judgment in
Chasnoff.” The court also noted the Board’s “belated disclosure” of parallel criminal and IAD
investigatory files and files, The trial court found that Chasnoff’s intervention in the police

officers’ action was essential to preserve the Chasnoff judgment, and that without the



disclosure, a public governmental body is authorized to close records concerning the discipline
of particular employees when personal information about the employee is discussed or recorded
or concerning individually identifiable personnel records. “[T]he exemptions allow the public
body to close disciplinary records at its discretion.” Jd. at 321.

“Section 610.021 is ‘permissive’ because it describes records that may be closed.”
Chasnoff 1, 334 S.W.3d at 151 (emphasis in original)(citing Guyer v. City of Kirkwood, 38
S.W.3d 412, 414 (Mo. bane 2001)). The Sunshine Law does not prohibit the Board from
disclosing the records at issue. Jd. To the contrary, “{nJothing in sections 610.010 to 610.028
shall be construed as to require a public governmental body to hold a closed meeting, record or
vote to discuss or act upon any matter.” Section 610.022.4. “The Board has always had the
authority and discretion to disclose the documents under the Sunshine Law.” Chasnoff I, 334
S.W.3d at 151. In short, a party’s claim that a governmental entity is required to close records is
not a claim under the Sunshine Law, which expressly prohibits such claims. /d. at 152. Rather,
such a claim comprises an independent action based on rights asserted under a different statute or
constitutional provision. Id.

On remand, the trial court concluded that the June 2010 judgment constituted the law of
the case, and that the police officers could not collaterally attack it. The trial court determined
that the contested records are public records subject to disclosure unless the police officers could
demonstrate an independent right to compel their closure. The trial court considered numerous
bases for the police officers’ claimed right to privacy compelling closure of the records and
discounted all of them. The trial court considered the privilege under Garrity v. New Jersey, a

constitutional right to privacy in employment records, a common-law right to privacy in


In the Missouri Court of Appeals

€astern District
DIVISION FIVE
JOHN CHASNOFF, Nos. ED101748 and ED101753
Plaintiff/Respondent, Appeal from the Circuit Court
of the City of St. Louis
vs.

Honorable Robert H. Dierker, Jr.
COL. JOSEPH MOK WA, et al.,

Defendants/Appellants,
WENDELL ISHMON, et al.,

Plaintiffs/Appellants,
vs.

ST. LOUIS BOARD OF POLICE
COMMISSIONERS, et al.,

Defendants,
and

JOHN CHASNOFF,

SS SS Se

Intervenor Defendant/Respondent. Filed: April 14, 2015

Scalpers sold tickets to the 2006 World Series in apparent violation of a then-existing
municipal ordinance. The St. Louis police seized the tickets as evidence. After some of the
tickets were used to admit persons to the World Series, some of the citizens from whom police

had seized the tickets complained to the police department. The department investigated and

disciplined certain police officers for their misconduct in the handling of evidence. John



citizen. The police officers point to no statute outside the Sunshine Law——which we have
already explained permits closure of records but does not compel it—to support their position.

The police officers rely heavily on Laut v. City of Arnold, 417 S.W.3d 315 (Mo. App.
E.D. 2013), for the proposition that they are entitled to compel closure of the records in question.
The trial court observed that while Laut extensively examined the closure of personnel records
under the Sunshine Law and the line of demarcation between “investigative reports” and
“personnel records,” “Laut proclaim[ed] no independent right of privacy so as to compel closure
of employment records.” (Emphasis in original). The trial court’s assessment is correct. The
Laut Court determined that if the document at issue in that case was responsive to the plaintiffs’
Sunshine Law request, and if it qualified equally as an investigative report under the statutory
definition and as a disciplinary or personnel record, then it must be disclosed. 417 S.W.3d at
326. The Laut Court continued that portions of the document exempt under subdivisions (3) and
(13) of section 610.021 regarding employee performance may be withheld. Jd. at 327 (emphasis
added). Nothing in Laut compels closure of public records based on the subject’s right to
privacy.

We need not define the precise contours of a public employee’s private, personal
information. Here, the police officers have never identified anything even arguably of a purely
personal character in the disputed records, We have examined the record on appeal thoroughly.®
We have found neither pleading nor proof that the records contain any personal or private facts.
Rather, this is simply a case of substantiated on-the-job misconduct, namely the misuse of
evidence. The police officers who testified at trial identified no reason for preventing the

records’ disclosure or any damages they would suffer other than their own embarrassment. “The

® The police officers could have requested the documents from the IAD investigation be filed with this Court for our
in camera review. Rule 81.12(e). But they did not do so.

12



of the purportedly personal information they claim the records contain. The trial court concluded
that, “information regarding a police officer’s performance of official duties, including discipline
imposed for misconduct involving citizens, is not a personal matter subject to constitutional
protection.” (Emphasis in original). We completely agree.

The trial court also considered the common-law tort of invasion of privacy under
Missouri law, and found that the police officers had no recourse there. In ¥.G. v. Jewish
Hospital of St. Louis, the Court identified the elements of the common-law tort of invasion of
privacy: (1) publication or publicity, (2) absent any waiver or privilege, (3) of private matters in
which the public has no legitimate concern, (4) so as to bring humiliation or shame to a person of
ordinary sensibilities. 795 S.W.2d 488, 498-99 (Mo. App. E.D. 1990). The tort of invasion of
privacy by public disclosure of a private matter requires that the fact disclosed must be of a
private matter, one in which the public has no legitimate concern. Jd. at 499. Here, the police
officers’ misconduct in the performance of their official duties is undoubtedly a matter in which
the public has a legitimate interest. Therefore, the trial court correctly determined that “the
public’s legitimate concern in the records at issue precludes deployment of that right [the
common-law right to privacy] to conceal those records from the public.”

Furthermore, the trial court considered whether the police officers had any other statutory
right to prevent disclosure of the records. The trial court observed that “no common law right of
privacy can trump the statutory policy declared by the Sunshine Law and expressly recognized
by [section] 109.180,” which provides, “[e]xcept as otherwise provided by law, all state, county
and municipal records kept pursuant to statute or ordinance shall at all reasonable times be open
for a personal inspection by any citizen of Missouri... .” The trial court determined that only

when a statute authorizes closure can a governmental entity withhold official records from a

il



disclosure of Garrity statements under the U.S. and Missouri Constitutions.” The police officers
sought a declaration to this effect concerning their privacy interest and constitutional protections,
as well as a pronouncement that the Board lawfully closed the records at issue and could
continue to keep them closed under the Sunshine Law. The police officers did not plead any
facts clarifying the nature of information they assert is personal.

The trial court’s June 2010 judgment ordered the disclosure of the IAD investigation
records based on section 610.021 of the Sunshine Law. The police officers acknowledge that
theirs is not a claim under the Sunshine Law. Nonetheless, they contend that they had a
legitimate expectation of privacy in records that could be closed by their employer, and in fact
were closed for a time under the Sunshine Law. The police officers rely on the definition of
“personal information” contained in the Sunshine Law to argue that all 59 of the records in
question constitute personal information. Section 610.021(3) of the Sunshine Law defines
“personal information” as “information relating to the performance or merit of individual
employees.” Thus, the police officers argue, the records of the disciplinary investigation of
individually identifiable police officers are personal matters in which the officers have a
legitimate expectation of privacy.

“The overarching purpose of the Sunshine Law is one of open government and
transparency.” Laut v. City of Arnold, 417 S.W.3d 315, 318 (Mo. App. E.D. 2013). A “public
record” is any record, written or electronic, retained by or of any public governmental body.
Section 610,010(6); Laut, 417 S.W.3d at 319. A public governmental body must make its public
records available to the public for inspection and copying. Section 610.023.2; Laut, 417 8.W.3d
at 319. These records are subject to permissive exemptions listed in Section 610.021. Id.

Section 610.021 states in relevant part that except to the extent the law otherwise requires



bypass Chasnoff in order to avoid disclosure of the records previously ordered disclosed, justifies
the award of $100,000 in attorneys’ fees to Chasnoff for the enforcement of his 2010 judgment
under the Sunshine Law.

We affirm the trial court’s judgment. The clerk of the trial court shall release the
remaining documents from the IAD investigation upon the issuance of this Court’s mandate in

accordance with the trial court’s stay order.

arn FH bensp

LAWRENCE E. MOONEY, JUDGE

ANGELA T. QUIGLESS, C.J., and
MARY K. HOFF, J., concur.

22



section 610.021 of the Sunshine Law, ordering disclosure of the IAD full investigative report
arising from the citizen complaint, awarding attorneys’ fees to Chasnoff, and assessing a civil
penalty. The trial court also allowed Wendall Ishmon and other named and unnamed St. Louis
police officers (collectively “the police officers”) to intervene in Chasnoff’s suit against the
Board “for the sole purpose of appealing the [cJourt’s final judgment” because the police officers
alleged certain privacy interests in the records that the court had ordered disclosed. The Board
announced its intention to comply with the trial court’s order and did not appeal the judgment
ordering disclosure of the records. However, Chasnoff appealed that part of the trial court’s
judgment allowing the police officers to intervene for the purpose of appeal. The police officers
filed a cross-appeal seeking reversal of the judgment ordering disclosure of the records at issue.
In Chasnoff v. Board of Police Commissioners, 334 8.W.3d 147, 152 (Mo. App. E.D.
2011) (“Chasnoff I’), this Court held that the trial court erred in granting the police officers’
motion to intervene for the purpose of appeal. We observed that a party’s claim that a
government agency must close records is not a claim under the Sunshine Law, which specifically
prohibits such claims in section 610.022.4. Chasnoff I, 334 S.W.3d at 152. We continued that
such a claim is an independent action that must be based on the assertion of rights under a
different statute or constitutional provision.’ Jd, Because the police officers neither asserted nor
obtained adjudication in the trial court of a claim against the Board alleging violation of their
personal privacy and property interests, we held that they could not raise the issue on appeal

from the underlying case. /d. We reversed that part of the judgment allowing the police officers

Missouri as a defendant in January 2008, and dismissed Colonel Mokwa and the Metropolitan Police Department in
March 2008.

* The police officers’ action is “independent” in the sense that it arises from a source other than the Sunshine Law.
However, a public employee’s independent action asserting a right of privacy and a Sunshine Law action should,
whenever possible, be joined to avoid inconsistent judgments and because both cases involve disclosure of the same
documents. See Rule 52.04.

4



Q. In fact, they were just told they would be used for internal purposes and not used

for-~—against them in a criminal prosecution, correct?

A. Yes,

Q. And nothing else one way or the other?

A. Yes,

Officer Wendell Ishmon testified that when he gave his statement, the police department
advised him the statement would be used only for internal purposes. On cross-examination,
Officer Ishmon testified:

Q. Weren’t you told that the statements would not be used against you in a subsequent

criminal proceeding, a Garrity statement?

A. I was told that my statement would be kept within the police department.

Q. And who told you that?
A, It’s on the form that I signed.

Q. All right.

A. That it would be used internally.

The form to which Officer Ishmon refers is the “advice of rights” form, which provides that the
statements may be used against him in relation to subsequent departmental charges, but not in
subsequent criminal proceedings. The form emphasizes that the officer is to keep the matters
discussed confidential. All of the other police officers agreed that if they were to testify, their
testimony would match that of Officer Ishmon.

The evidence reveals that the Board’s custom and practice was to decline to share any
information learned through Garrity statements. The evidence also establishes that the police
officers were informed that their statements would be used for only internal purposes, and
correspondingly that their Garrity statements could not be used against them for purposes of
subsequent criminal prosecution. We agree with the trial court, however, that at no time were
the officers told that their Garrity statements would not be disclosed for legitimate purposes,

such as pursuant to a Sunshine Law request or court order. “Use immunity” entails the

suppression of any statements or their fruits in a criminal prosecution, and adequately replaces

15



fitness for office, Consequently, each police officer had an expectation that his statements were
confidential because the Sunshine Law identifies disciplinary records as “personal information”
and because the police department assured the officers that the statements were for internal
disciplinary purposes.

The police officers’ reliance on the contention that the Board promised the records
would be used only for internal disciplinary purposes is misplaced. While the bracketed
confidentiality language, which has since been removed from the “advice of rights” form, is less
than ideal, it cannot trump the Sunshine Law. We agree with the trial court’s determination that
“[e]ven if the custom and practice of the Board was to preserve ‘Garrity statements’ as
confidential, this custom and practice does not create any enforceable rights in the [police
officers].”

Furthermore, the trial court’s June 2010 judgment ordered the disclosure of the IAD
investigation records based on section 610.021 of the Sunshine Law, and that issue was not
appealed.” Section 610.021 states in relevant part:

Except to the extent disclosure is otherwise required by law, a public governmental body

is authorized to close meetings, records and votes, to the extent they relate to the
following:

ORK
(3) Hiring, firing, disciplining or promoting of particular employees by a public
governmental body when personal information about the employee is discussed or
recorded. ... As used in this subdivision, the term “personal information” means
information relating to the performance or merit of individual employees;

ORR
(13) Individually identifiable personne! records, performance ratings or records
pertaining to employees or applicants for employment, except that this exemption
shall not apply to the names, positions, salaries and lengths of service of officers
and employees of public agencies once they are employed as such. . . [.]

7 We need not and do not address the Sunshine Law holdings of the 2010 judgment because they were never
appealed by any party to the trial court’s adjudication of rights under the Sunshine Law.

17



(Emphasis added.) The bracketed language is no longer included in the current “advice of
rights” form, but was included in the forms presented to the police officers in this case. IAD
interviewed each police officer who is a party in this case in investigating the complaints that
World Series tickets had been improperly used. IAD investigators presented each police officer
with the “advice of rights” quoted above, which is based on Garrity v. New Jersey, 385 U.S. 493
(1967), The police department refers to the subsequent interviews as “Garrity statements.”

The investigation revealed that a number of World Series tickets seized from arrestees
were used by other persons and then placed in the evidence storage area of the police
department’s vice and narcotics division. Of 98 confiscated World Series tickets, 31 tickets were
used, and investigators learned that several police officers had allowed family members and
friends to use the tickets. At the investigation’s conclusion, the police department disciplined 16
police officers, with penalties ranging from written reprimand to suspensions and demotions in
rank. IAD found that these police officers failed to obey rules for proper handling of evidence,
engaged in conduct unbecoming an officer, or violated department procedures. The trial court
found that it did not appear from the record that any of the police officers contested the discipline
imposed.

John Chasnoff sought disclosure of the records of any complaints and investigative
reports related to the confiscated World Series tickets situation under the Sunshine Law, section
610.010 ef seq., RSMo. (2000 & Supp. 2013).' Because the police department refused to
produce the entire IAD file, Chasnoff filed suit against the Board seeking relief under the

Sunshine Law.? In June 2010, the trial court entered judgment in Chasnoff’s favor based on

" All statutory references are to RSMo. (2000 & Supp. 2013).

? The suit originally named then-police chief Colonel Joseph Mokwa, the Metropolitan Police Department of the
City of St. Louis, and the State of Missouri as defendants along with the members of the St. Louis Board of Police
Commissioners who were sued individually but in their official capacity. The trial court dismissed the State of

3



Chasnoff requested records of the investigation pursuant to Missouri’s Sunshine Law. The

Circuit Court of the City of St. Louis ordered the production of 59 specific records and awarded

attorneys’ fees to Chasnoff, Because we conclude that the police officers lack a protectable

privacy interest in these records of their substantiated on-the-job police misconduct, we affirm

the judgment ordering the records’ release. Because the trial court properly awarded attorneys?

fees due to a knowing violation of the Sunshine Law, we affirm the award of attorneys’ fees.
Facts and Procedural History

In early November 2006, a citizen complained to the St. Louis Metropolitan Police
Department that his St. Louis Cardinals 2006 World Series baseball tickets were improperly used
during the 2006 World Series. The citizen reported that police had confiscated the tickets for
illegal scalping, that is, selling the tickets for more than their stated price. The police
department’s Internal Affairs Division (IAD) investigated. After a news article on the story
appeared, a second citizen filed a similar complaint.

When investigating a complaint of misconduct, IAD investigators interview the subject
police officer(s). The IAD investigator provides the police officer with the following “advice of
rights.”

I wish to advise you that you are being questioned as part of an official investigation of

the Police Department. You will be asked questions related and specifically directed to

the performance of your official duties or fitness for office. You are entitled to all the
rights and privileges guaranteed by the laws and the Constitution of this State and the

Constitution of the United States, including the right not to be compelled to incriminate

yourself. I further wish to advise you that if you refuse to testify or answer questions

relating to the performance of your official duties or fitness for duty, you will be subject
to department charges which could result in your dismissal from the Police Department.

Ifyou do answer, these statements may be used against you in relation to subsequent

departmental charges, but not in any subsequent criminal proceedings. [I understand

that all matters discussed are confidential and that I shall not discuss or communicate any

part of these matters to any other person, other than my attorney, without prior written
permission from the Command, Internal Affairs.]



clear purpose of the Sunshine Law is to open official conduct to the scrutiny of the electorate.”
North Kansas City Hosp., 984 S.W.2d at 122 (quoting Hyde v. City of Columbia, 637 S.W.2d
251, 262 (Mo. App. W.D. 1982)). “The overarching purpose of the Sunshine Law is one of open
government and transparency.” Laut, 417 S.W.3d at 318. The information that the police
officers seek to suppress is precisely the type of information that the Sunshine Law operates to
open. The police officers have no right under the Sunshine Law, the U.S. or Missouri
Constitutions, common law, or Missouri statutes to compel closure of public records regarding
the officers’ substantiated misconduct in the performance of their official duties. We deny the
police officers’ first point.

In their second point on appeal, the police officers argue that the trial court erred in
finding that the Board’s practice of using police officers’ compelled Garrity statements only for
internal discipline and its advice to the police officers that the statements were only for internal
use did not amount to a promise of non-disclosure giving rise to a right to privacy.

Each police officer received an “advice of rights” form, which included the following
language:
[T]hese statements may be used against you in relation to subsequent departmental
charges, but not in any subsequent criminal proceedings. [1 understand that all matters
discussed are confidential and that I shall not discuss or communicate any part of these
matters to any other person, other than my attorney, without prior written permission
from the Command, Internal Affairs.]
(Emphasis added). As stated earlier, the current “advice of rights” form no longer contains the
bracketed language, but the forms presented to the police officers involved in this case did

include it. Each police officer acknowledged receipt of the “advice of rights” form with his

signature.



the constitutional privilege against self-incrimination. Gardner v. Mo. State Highway Patrol
Superintendent, 901 S.W.2d 107, 113 (Mo. App. W.D. 1995)(emphasis added). Use immunity
arises as a matter of law once a public employee is given a Garrity-type warning. Id.
Assurances of use immunity—an assurance that a statement will be used only for internal
purposes and not for purposes of subsequent criminal prosecution—in no way equates to a
promise not to disclose the statement under the Sunshine Law if requested, or ordered by a court,
to do so.

The trial court also concluded that “[e]ven if the custom and practice of the Board was to
preserve ‘Garrity statements’ as confidential, this custom and practice does not create any
enforceable rights in the [police officers]. The law of Missouri is found in the statutes and
decisions of the courts and not in police department administrative customs.”

The police officers contend on appeal that the trial court’s finding was not supported by
substantial evidence and misapplied the law because the uncontroverted evidence reveals that the
police officers were advised that their compelled statements and records were for use only in
internal disciplinary proceedings. Thus, the police officers maintain, they had a legitimate
expectation of privacy in their individually identifiable personnel records that were not part of
any criminal investigation. The police officers characterize the issue not as whether the Board
promised not to disclose the records. Rather, they portray the issue as whether the Board
promised that the records were for disciplinary use only and thus constituted individually
identifiable personnel records regarding discipline in which the police officers had an
expectation of privacy under the Sunshine Law, specifically subdivisions (3) and (13) of section
610.021, In short, the police officers argue that the “advice of rights” form each signed assured

them that they would be asked questions solely about performance of their official duties or