E. Exceptions to Disclosure Found in Chapter 610, Rsmo

• Library: The Sunshine Law Guidebook (2019 Ed.)

E. Exceptions to Disclosure Found in Chapter 610, RSMo

1. Legal Actions, Causes of Action, or Litigation

Section 610.021(1), RSMo Supp. 2018, authorizes a public governmental body to close a meeting, record, or vote to the extent that it relates to "[l]egal actions, causes of action or litigation involving a public governmental body and any confidential or privileged communications between a public governmental body or its representatives and its attorneys." But any minutes, votes, or settlement agreements relating to legal actions, causes of action, or litigation involving the body, its agent, or its insurance company are to be made public upon the final disposition of the matter voted on or upon the parties signing a settlement agreement. Section 610.021(1). A settlement agreement becomes public when signed unless the court orders the agreement closed because the adverse impact to the plaintiff outweighs the public policy considerations of § 610.011, RSMo 2016. Section 610.021(1). This exemption has been applied to the following situations:

· Meetings between a state licensing agency and a professional person licensed by that agency concerning possible suspension or surrender of the license, Mo. Op. Att'y Gen. 4-75 (1975)

· Meetings to discuss causes of action when the public governmental body is a potential plaintiff or defendant, regardless of whether legal action or litigation has already commenced, Mo. Op. Att'y Gen. 59-76 (1976)

In Tuft v. City of St. Louis, 936 S.W.2d 113 (Mo. App. E.D. 1996), the court held that a settlement agreement between an employee and a city did not have to be disclosed because the agreement related to a legal action or cause of action even though litigation had not been commenced. The legislature has since provided that settlement agreements must be disclosed subject to the balancing test set forth above. Even if the court orders the details of the agreement closed, the dollar amount paid by the public body will be an open public record. Section 610.021(1).

In addition, if the matter involves use of eminent domain, the vote on the matter must be made public immediately following the closed session. Section 610.021(1).

Confidential or privileged communications between a public governmental body or its representatives and its attorneys fall within the litigation exception. Librach v. Cooper, 778 S.W.2d 351, 353 (Mo. App. E.D. 1989) (a governmental body benefits from the attorney-client privilege in the same manner as a private citizen). But the mere fact that an attorney has been involved in some stage of the proceedings or discussions regarding a severance agreement is not enough to close the final settlement contract. Id.

Work product of the public body's attorney is always closed. Section 610.021(1). But the attorney-client exemption does not allow closure of itemized billing statements submitted to a public governmental body by its attorney if the entries do not contain privileged communications. Tipton v. Barton, 747 S.W.2d 325, 330 (Mo. App. E.D. 1988). Attorneys representing public bodies need to be cognizant that their billing statements may be subject to disclosure.

2. Real Estate Transactions

Meetings, records, or votes are authorized to be closed to the extent that they relate to "[l]easing, purchase or sale of real estate by a public governmental body where public knowledge of the transaction might adversely affect the legal consideration therefor." Section 610.021(2), RSMo Supp. 2018. But minutes, votes, or records approving a contract relating to the sale, purchase, or lease of real estate are to be made public upon execution of the lease, purchase, or sale. Id. In City of St. Louis v. City of Bridgeton, 806 S.W.2d 717 (Mo. App. E.D. 1991), the court held that the City of St. Louis did not have to disclose records to the City of Bridgeton showing the consideration paid for real estate located in Bridgeton and purchased by the City of St. Louis for airport noise abatement. At the time, the City of St. Louis was still attempting to purchase additional adjacent parcels of land. The court concluded that the word "transaction" is sufficiently broad to encompass a multi-lot bulk real estate acquisition program, noting that evidence of the purchase price in the earlier acquisitions could adversely affect the price the city would have to pay to acquire the remaining lots. Bridgeton, 806 S.W.2d at 719.

In Spradlin v. City of Fulton, 982 S.W.2d 255 (Mo. banc 1998), the Supreme Court of Missouri held that this exception did not apply to a city's discussion of development of a golf course by a private group, which leased it to the city. Spradlin points out that this exception has two prongs:

1. It involves real estate.

2. Public knowledge will affect the price.

3. Personnel and Employment Matters

Meetings, votes, and records concerning the "[h]iring, firing, disciplining or promoting of particular employees . . ." may be closed "when...