Вы находитесь на странице: 1из 10

Electronically Filed - Boone - June 28, 2019 - 03:03 PM

IN THE CIRCUIT COURT OF BOONE COUNTY


THIRTEENTH JUDICIAL CIRCUIT
STATE OF MISSOURI

ARME (Animal Rescue, Media & )


Education), d/b/a Beagle Freedom Project, )
) Case No.: 16BA-CV01710
Plaintiff, )
)
v. ) Division: 2
)
The Curators of the University of Missouri )
and Paula Barrett, )
)
Defendants )

DEFENDANTS’ TRIAL BRIEF

Pursuant to this Court’s pre-trial order, Defendants the Curators of the University of

Missouri (“University”) and Paula Barrett (collectively “Defendants,”) by and through counsel,

present the following Trial Brief:

I. Introduction

Plaintiff Animal Rescue, Media, and Education d/b/a Beagle Freedom Project (hereafter

“Plaintiff”) is a California non-profit organization. Petition ¶ 7. Its purpose is to “advocate for,

educate the public about, and take action to improve the animals used in medical research, testing,

and education.” Id. ¶ 12. On March 6, 2015, Plaintiff submitted a records request to Defendant

Paula Barrett, the Custodian of Records for the University of Missouri System, who receives and

responds to requests made pursuant to the Missouri Sunshine Law. See Plaintiff’s Response to

Defendants’ Statement of Uncontroverted Material Facts, ¶ 7 (electronically filed on 4-05-18.)

Plaintiff requested “a census of all dogs and cats currently held at any University of Missouri research

facility” and a list of certain protocols “involving the use of dogs and/or cats.” The Custodian of

Records may charge fees for providing access to or furnishing copies of records of the University

00252497-1 1
Electronically Filed - Boone - June 28, 2019 - 03:03 PM
to the extent permitted by law and may waive such fees as permitted by law. Id. ¶ 6. Ms. Barrett

informed Plaintiff that gathering the records requested was estimated to cost $289.00. Plaintiff paid

the stated amount and the records, listing 179 animals, were provided. Id. ¶ 17

Subsequently, in December of 2015, Plaintiff submitted a Sunshine Law request to Ms.

Barrett seeking records for all 179 animals that had previously been identified. See Exhibit A to

Plaintiff’s Petition (12-26-15 Letter). The request sought “any and all intake records, transfer

records, daily care logs, animal health records, treatment and progress reports, veterinary reports,

necropsy reports, photographs, and videos” relating to 179 dogs and cats, in addition to copies of

research protocols pertaining to each animal. Id. Plaintiff requested copies of records for each

animal over an almost two year time frame, from January 1, 2014 to December 26, 2015. Id. A

sample set of records collected for a single animal, not including the research-related records,

photos or videos maintained by the principal investigator or the research team, comprised 559

pages. Plaintiff’s Response to Defendants’ Statement of Uncontroverted Material Facts, ¶ 15. Ms.

Barrett contacted staff in the University’s Office of Animal Resources (OAR) for assistance in

estimating the cost of producing the requested records for all 179 animals. Id. ¶ 35. The OAR

staff used a spreadsheet to keep track of the estimated time to gather the records associated with

each animal listed. Id. ¶ 41. After receiving the time estimates to compile the records and making

downward adjustments, Ms. Barrett calculated the total estimated cost of producing the records

for 179 animals to be $82,222.33. Ms. Barrett informed Plaintiff that if the actual cost of gathering

the records proved to be less than the estimated cost, Plaintiff would be refunded the difference.

Id. ¶ 46. Plaintiff did not pay the estimated cost. Id. ¶ 47. This lawsuit followed.

Plaintiff’s Petition alleges that Defendants violated the Missouri Sunshine Law in three

ways: (1) by failing to use employees that resulted in the lowest amount of charges for search,

00252497-1 2
Electronically Filed - Boone - June 28, 2019 - 03:03 PM
research and duplication, (2) by “attempting to charge unnecessary and excessive fees” to compile

records, and (3) by “arbitrarily denying fee waivers or reductions and/or substituting their

conception of their best interest for the public policy and public interest.” See Plaintiff’s Petition,

¶60-62. The evidence in this case establishes that Defendants complied with the Missouri

Sunshine Law in preparing an estimate of the anticipated cost to research and produce the

numerous records Plaintiff requested. Plaintiff cannot prove that Defendants violated the Sunshine

Law and, therefore, Defendants are entitled to judgment in their favor.

II. Memorandum of Law

A. Defendants complied with the Sunshine Law in calculating a cost estimate

based on the scope of Plaintiff’s records request.

The Missouri Sunshine Law authorizes the public governmental body from which records

are sought to charge fees or seek reimbursement for particular expenses incurred in responding to

open-records requests. § 610.026, RSMo (2004). Among the expenses for which the governmental

body may seek reimbursement is research time. The statute provides that “research time required

for fulfilling records requests may be charged at the actual cost of research time.” Id. (emphasis

added.) The law does not identify any cap or maximum hourly rate allowed. Instead, it states that

“[b]ased on the scope of the request, the public governmental body shall produce the copies using

employees of the body that result in the lowest amount of charges for search, research, and

duplication time.” Id.

Pursuant to the statute, the scope of the request dictates the employees whose use in

processing the request will result in the lowest amount of charges for search, research and

duplication time. §610.026.1, RSMo (emphasis added.) Missouri courts have found that rather

than charging an “across-the-board per record fee,” the governmental body should consider “the

00252497-1 3
Electronically Filed - Boone - June 28, 2019 - 03:03 PM
nature, size or other particulars of a given request.” R.L. Polk & Co. v. Missouri Dep't of Revenue,

309 S.W.3d 881, 885 (Mo. App. W.D. 2010). The amount charged is related to the staff time used

and the cost incurred by the governmental body. Id.

Plaintiff cannot establish that Defendants failed to use employees that resulted in the lowest

amount of charges for search, research and duplication, or that the estimated fees were unnecessary

or excessive. Defendants took proper steps to estimate the cost of producing the requested records

for all 179 animals and kept a spreadsheet to keep track of the estimated time to gather the records.

Moreover, Defendant Barrett reviewed the spreadsheet and adjusted downward time estimates that

appeared to her to be potentially overestimated. An estimate by its very nature is not “based on

absolute calculations but is exactly what the word means, an estimate. To make an estimate,

ordinarily means ‘to calculate roughly, or to form an opinion of an amount from imperfect data.”

J.E. Hathman, Inc. v. Sigma Alpha Epsilon Club, 491 S.W.2d 261 (Mo. banc 1973). Accordingly,

Plaintiff was informed that if the actual cost of gathering the records proved to be less than the

estimated cost, Plaintiff would be refunded the difference

Plaintiff’s contention that Defendants attempted to charge “unnecessary and excessive

fees” for records that should be “compiled in an orderly manner” and for records held by Principle

Investigators is defeated by the plain language of the statute which allows for consideration of the

scope of the request in determining the individuals necessary to obtain the records. Petition, ¶61.

Plaintiff’s request encompassed records that were stored in paper form, and those that were stored

electronically. The Sunshine Law recognizes that records may include paper copies, or records

“maintained on computer facilities, recording tapes or disks, videotapes or films, pictures, maps,

slides, graphics, [and] illustrations.” § 610.026.1(2), RSMo The law does not require a public

governmental body to maintain records in a certain form or in a certain location, or to create new

00252497-1 4
Electronically Filed - Boone - June 28, 2019 - 03:03 PM
records, but only to provide access to existing records held or maintained. Id.; Jones v. Jackson

County Circuit Court, 162 S.W.3d 53, 60 (Mo.App. W.D. 2005). Accordingly, there is no

violation for preparing a cost estimate for researching the various types of records sought by

Plaintiff.

Plaintiff’s request for “photographs and videos” required research by Principal

Investigators (“PIs”) for each project in which an animal participates. Defendants’ Statement of

Uncontroverted Material Facts (SUMF) ¶¶ 14, 21 (electronically filed on 2-22-18). The PIs

manage and monitor their own projects and are responsible for their own recordkeeping. In order

to provide Plaintiff with copies of all responsive items for each of the 179 animals, Defendants

included in the cost estimate the time that it would take the PIs to research their records and identify

responsive photographs or video recordings. Id. ¶¶ 25-26. This time cannot be considered

unnecessary or excessive when it represents an actual cost to obtain the requested records.

§ 610.026, RSMo; 309 S.W.3d at 885.

During the course of this litigation, Plaintiff has asserted that its Sunshine Law request did

not actually seek items in the possession of the Principal Investigators or photos or videos of the

animals, but instead asked for a limited set of documents that are available “pursuant to federal

and state regulations and best scientific practices.” See Petition, ¶61. Treating those statements

to the court as a revision to the December 26, 2015 request, Defendants have provided Plaintiff

with a revised estimate for the limited set of records. See Exhibit 1, attached hereto and

incorporated by reference herein. The estimated cost for search, research and retrieval of the

limited set of documents is $8,950.00. To date, Plaintiff has not responded to the revised estimate.

Moreover, Plaintiff cannot establish that Defendants arbitrarily denied fee waivers

or reductions. The Sunshine Law does not require Defendants to waive fees or reduce the cost of

00252497-1 5
Electronically Filed - Boone - June 28, 2019 - 03:03 PM
producing records. Instead, the plain language of the statute provides the governmental body with

discretion to determine when documents may be furnished without charge or at a reduced charge

“when the public governmental body determines that waiver or reduction of the fee is in the public

interest because it is likely to contribute significantly to public understanding of the operations or

activities of the public governmental body and is not primarily in the commercial interest of the

requester.” §610.026.1, RSMo (emphasis added). Pursuant to §610.026, RSMo, Defendants were

entitled to request payment for the records requested by Plaintiff. Because there is no legal ground

for Plaintiff to claim entitlement to a fee waiver or fee reduction, Defendants are entitled to

judgment in their favor.

B. Defendants did not knowingly or purposefully violate the Sunshine Law.

There is no evidence that Defendants knowingly or purposefully violated the Sunshine

Law. To the contrary, the evidence shows that Defendants conscientiously gathered information

from staff at OAR in order to provide Plaintiff with a cost estimate based on the scope of Plaintiff’s

request.

Under Missouri law, a violation of the Sunshine Law does not itself require knowledge that

a violation is occurring, but imposition of a penalty does. Laut v. City of Arnold, 491 S.W.3d 191,

199 (Mo. banc 2016). Public governmental bodies that knowingly or purposely violate the

Sunshine Law are subject to civil penalties. §610.027, RSMo. In addition, 610.027 authorizes

the trial court to impose costs and attorney's fees upon a public governmental body that knowingly

or purposely violates the Sunshine Law. Where the issue is whether a penalty and attorney's fees

should be imposed, the “portions of the Sunshine Law that allow for imposition of a civil penalty

and an award of attorney fees and costs are penal in nature and must be strictly construed.” 491

S.W. 3d at 196.

00252497-1 6
Electronically Filed - Boone - June 28, 2019 - 03:03 PM
Section 610.027 states that a knowing violation occurs when the public entity “has

knowingly violated sections 610.010 to 610.026.” §610.027.3, RSMo. To prove a knowing

violation, a party must prove that the defendant had actual knowledge that its actions violated the

Sunshine Law.

Plaintiff has a higher burden in attempting to prove a “purposeful” violation under section

610.027. To purposely violate the Sunshine Law, a “public governmental body must exhibit a

conscious design, intent, or plan to violate the law and do so with awareness of the probable

consequences.” White v. City of Ladue, 422 S.W.3d 439, 451 (Mo. App. E.D. 2013)

(citing Spradlin v. City of Fulton, 982 S.W.2d 255, 262 (Mo. banc 1998)). A plaintiff must show

that the conscious plan or scheme, the purpose of the conduct, was to violate the law. 491 S.W.3d

at 199. “Furthermore, “[e]ngaging in conduct reasonably believed to be authorized by statute does

not amount to a purposeful violation.” Id. at 451-452 (citing R.L. Polk & Co. v. Missouri Dept. of

Revenue, 309 S.W.3d 881, 886 (Mo.App. W.D. 2010)).

The court’s analysis in White v. City of Ladue is instructive. In White, the plaintiff sought

public records from the City. 422 S.W.3d at 444. The City responded by requesting advance

payments to provide the records, which included charges for attorney review time. The trial court

granted summary judgment for the City, finding as a matter of first impression that attorney review

time is not included in the “research time” that public bodies may charge for pursuant to section

610.026.1(1), but the trial court held that the City’s violation was not knowing or purposeful. Id.

at 444-45. The plaintiff appealed the judgment in favor of the City and the appellate court found

that the plaintiff’s Sunshine Law requests related to future litigation and that the City could bill

attorney review time as an actual cost to the City. Id. at 452. In addition, the appellate court

determined that the hourly rate charged by the City was not an attempt to recover more than the

00252497-1 7
Electronically Filed - Boone - June 28, 2019 - 03:03 PM
actual cost. The court noted that the City’s letter seeking advanced payment specified that the

amount was an estimate, and would be adjusted to reflect actual costs of producing the records.

Id. at 452-453 (emphasis in original.) The court concluded that there was no knowing or

purposeful violation. Id. at 453. See also 309 S.W.3d at 883-884 (“while the [defendant’s]

calculation to set its fee was incorrect, its interpretation of the statute and its proposed rate did not

demonstrate a knowing or purposeful violation.”)

In comparison, the evidence is this case demonstrates that Defendants were conscious of

the legal requirement that “the lowest paid employee” who could research the records should be

used. Defendants’ SUMF ¶ 36. At Ms. Barrett’s direction, University staff created a spreadsheet

listing the various staff anticipated to be involved in searching for and collecting the various

records requested by Plaintiff, along with an estimate of the amount of time it would take each

person to gather the records for each animal. Id. ¶ 41. Ms. Barrett did not just accept the time

estimates at face value—she took additional steps in an effort to mitigate the cost to Plaintiff. For

example, rather than simply multiply the estimated number of hours needed to gather an applicable

research protocol in one case by 179 for a total estimate, Ms. Barrett asked the applicable staff to

consider whether there could be a reduction in cost “for providing records in mass”—a reduction

that was taken into account and applied. Id. ¶¶ 39-40. In addition, when some of the PIs provided

time estimates that Ms. Barrett believe were high in comparison to the estimates submitted by

others; she reduced the estimated hours for those PIs for purposes of calculating the total estimated

cost. Id. ¶ 42. Furthermore, Ms. Barrett informed Plaintiff that if the actual cost of gathering and

producing the documents proved to be less than the estimated cost, the University would refund

Plaintiff the difference. Id. ¶ 46. Even if this Court were to find that Defendants’ cost estimate in

some way violated a provision of the law, “being wrong is not the same as knowing one is violating

00252497-1 8
Electronically Filed - Boone - June 28, 2019 - 03:03 PM
the law or acting purposely to violate the law.” 491 S.W. 3d at 201. There is no evidence that

Defendants had actual knowledge that their actions violated the Sunshine Law, or that the purpose

of Defendants’ action was to violate the law. Rather, the evidence in this case supports a finding

that Defendants did not violate the Sunshine Law and in no circumstance was any alleged violation

knowing or purposeful. Accordingly, Defendants are entitled to judgment in their favor.

III. Conclusion

WHEREFORE, Defendants move this Court to grant judgment in their favor, and to grant

such further relief as the Court deems just and proper in the premises.

Respectfully submitted,

Office of the General Counsel


Stephen J. Owens, General Counsel

/s/ Paul R. Maguffee


________________________
Paul R. Maguffee, No. 48126
maguffeep@umsystem.edu

/s/ Emily W. Little

Emily W. Little, No. 49929


littleew@umsystem.edu
227 University Hall
Columbia, Missouri 65211
(573)882-3211(telephone)
(573)882-0050 (facsimile)
Attorneys for Defendants

00252497-1 9
Electronically Filed - Boone - June 28, 2019 - 03:03 PM
CERTIFICATE OF SERVICE

I hereby certify that on the 28th day of June, 2019, I filed and served the foregoing using
the Court’s electronic filing system upon the following:
Eric C. Crinnian Daniel J. Kolde
The Crinnian Law Firm, LLC 230 S. Bemiston Ave., Suite 1420
107 W. 9th St., 2nd Floor St. Louis, MO 63105
Kansas City, MO 64105 daniel.kolde.law@gmail.com
eric@crinnian.law Attorney for Plaintiff
Attorney for Plaintiff

/s/ Emily W. Little


Emily W. Little
Attorney for Defendants

00252497-1 10