HB 2523 Modifies enforcement procedures for violations of the Missouri Sunshine Law and record retention provisions

     Handler: Rowden

Current Bill Summary

- Prepared by Senate Research -


HCS/HBs 2523 & 2524 - This act authorizes any aggrieved person, the Attorney General of Missouri, or a prosecuting attorney to seek enforcement of certain record retention laws that prohibit the destruction of records by public bodies. Upon the filing of such an action, the custodian of records for the body shall not transfer, alter, destroy, or otherwise dispose of the material until a court order is issued on the status of the material. Upon a finding by a preponderance of the evidence that a public body or member of the body has knowingly violated such record retention laws, the body or member shall be subject to a civil penalty of between $500 and $10,000, as well as required to pay attorney fees and costs to the successful party. Any person that knowingly violates such record retention laws shall be guilty of a Class B misdemeanor. If there is a finding that the body or member has not knowingly violated such laws, then the body or member may be subject to a civil penalty of up to $1,000 and may be ordered to pay attorney fees and costs to the successful party. Any such action must be brought within one year of the violation being discovered. Circuit courts of this state shall have authority to issue injunctions to enforce certain record retention laws.

Any public body that is in doubt about the legality of destroying or disposing of any material may seek a formal opinion of the Attorney General. Any body relying in good faith on such opinion shall not be deemed to have committed a violation of certain record retention laws.

Currently, a public body or member that knowingly violates the Missouri Sunshine Law is subject to a civil penalty of up to $1,000. This act changes the penalty to not less than $500 but not more than $10,000. If the court finds a knowing violation, then the court shall, rather than may, order the payment of all costs adnd reasonable attorney fees. A person who knowingly violates the Sunshine Law is guilty of a Class B misdemeanor.

Current law provides a separate set of civil penalties for purposeful violations of the Sunshine Law. This act repeals such penalties for purposeful violations. The act further provides that a public body or member that has not knowingly violated the Sunshine Law may be subject to a penalty of not more than $1,000 and the court may order the payment of attorney fees and costs to the successful party.

There is created within the office of Attorney General a Transparency Division. Any assistant attorney general assigned to the Division shall not participate in the prosecution or defense of any civil claim on behalf of the state, except that such assistant attorney general may participate in the prosecution of any violation of record retention laws or the Missouri Sunshine Law. The state, and all agencies of the state, are deemed to waive any conflict of interest under the Rules of Professional Conduct that an assistant attorney general may have.

If the Attorney General concludes that any person may have violated record retention laws or the Missouri Sunshine Law, the Attorney General may serve a civil investigative demand on any person that he or she believes may have information or evidence relevant to the suspected violation. The act sets forth the contents of the demand as well as service of the demand. A recipient of a demand may file a petition to extend the return date for good cause or seek to quash or modify the demand. A demand shall only be quashed or modified on the same basis as a subpoena duces tecum issued by a court. If a person fails to comply with a demand, the Attorney General may file a petition for an order to enforce the demand. A person refusing to comply with an order enforcing the demand shall be found in contempt. Any person who, with intent to avoid compliance with the demand, removes, destroys or somehow alters any information responsive to the demand shall be guilty of a Class A misdemeanor. The Attorney General shall have concurrent jurisdiction to enforce this provision.

This act is similar to SB 1048 (2018).

JIM ERTLE


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