Missouri Senate

Senate Committee Substitute

Currently, if the Ethics Commission finds no probable cause to believe a violation of ethics laws has occurred, the Commission may dismiss the case. This act removes that provision regarding findings of probable cause. The act provides that all records at a hearing of the Commission shall be open records when the Commission determines at a hearing that probable cause exists that a violation has occurred. Upon motion of any party and good cause shown, the Commission may close any record to be introduced at the hearing. (Sections 105.957 and 105.961).

The act requires the minutes of a meeting to include a summary of the discussions occurring during the closed meeting. For any public meeting that addresses issues regarding a fee or tax increase, eminent domain, zoning of a specific property, certain types of improvement or development districts, or tax increment financing, the governing body of such county, city, town or village must give at least four days notice before the entity may vote to address such issues. Each such public meeting must include time for public comment. If proper notice is not given, any discussion on the issue must be postponed and no vote shall be taken until proper notice has been provided. The notice provisions shall not apply to votes or discussion related to certain proposed ordinances, or in the case of emergencies. For a zoning matter, the notice provisions will only apply to the initial meeting at which the matter is heard. (610.020).

Currently, public bodies are authorized to close meetings or records relating to causes of action involving the public body. This act defines "cause of action" to include a lawsuit that has been filed, correspondence from a party threatening a lawsuit if demands are not met and the public body agrees that such demands are unlikely to be met, or the body agrees that a substantial likelihood exists that litigation may occur. Provisions relating to disclosure of settlement agreements shall only apply to certain agreements settled for over $25,000 per occurence. (610.021(1)).

The act creates three new bases for closing a record or meeting. First, records regarding a proposal to license intellectual property submitted to public institutions of higher education may be closed under certain circumstances. (610.021(22)). Second, a public body may close records regarding internal investigations by law enforcement into the fitness or conduct of a law enforcement officer for employment purposes. (610.021(23)). Finally, deliberations and votes by a board of trustees concerning denial of an application to participate in a state insurance trust fund as well as a denial of a claim for reimbursement from such a fund may be closed (610.021(24)).

During a closed meeting, the act provides that only members of the public body, their attorney and staff assistants, and any other person necessary to provide information needed by or requested by the public body shall be permitted in the closed meeting. (610.022).

The act requires information to be made available in an electronic format if the public body keeps records in an electronic format. Data must be available in a format accessible to the public if it is stored in a data-processing program. Hospitals will not be compelled to violate their licensing agreements involving proprietary data-processing systems. Contracts for electronic services by public bodies must include provisions for limiting the liability of the body through the use of data loss prevention or data leak prevention technology. (610.023 and 610.029).

The act modifies provisions regarding the penalty for violation of the Sunshine Law. The burden shall be on the public body, or member, to prove that a meeting, record or vote may be closed to the public. The penalty for a purposeful violation is increased from $5,000 to $8,000, and the burden of proof for a purposeful violation is increase from a "preponderance of the evidence" standard to a "clear and convincing evidence" standard. The act defines what constitutes "purposely violated". Currently, a court may void the actions of a public body when evaluating actions in violation of the Sunshine Law that occur in a closed meeting. This act extends such court authority to open meetings as well. (610.027). With regard to criminal investigative reports, the act provides that the party seeking disclosure of the report shall have its reasonable and necessary costs and attorneys' fees paid if the decision of the law enforcement agency to not open the report was substantially unjustified. (610.100).

Currently, certain closed criminal records must be available to certain entities, including the division of workers' compensation for the purpose of determining eligibility for crime victims' compensation. This act replaces the reference to the division of workers' compensation with the department of public safety. (610.120).

JIM ERTLE