Can public employees keep records private after a judge has ruled they should be released under Missouri's sunshine law?

That is the question that a panel of the Missouri Court of Appeals will consider Wednesday in a session at the Washington University School of Law.

The long-running legal fight has its roots in the 2006 World Series between the St. Louis Cardinals and the Detroit Tigers. Sixteen employees of the St. Louis Metropolitan Police Department were disciplined internally after officers used tickets they had seized from scalpers to attend the games. No criminal charges were ever filed.

In April 2007, John Chasnoff, a co-chair of the Coalition Against Police Crimes and Repression, sued under the Missouri sunshine law to get access to the files that were generated as part of the internal affairs investigation. What followed was a seven-year legal fight that included contradictory rulings from two St. Louis judges.

Finally, in June 2014, Circuit Court Judge Robert Dierkerordered the records released, writing:

“On the whole, the Court is unable to conclude that there is in reality an overarching constitutional right to privacy of employment records of public employees.”

The officers who were questioned as part of the investigation appealed Dierker’s ruling.

Sunshine law vs. a right to privacy

The records at issue are what are known as “Garrity statements,” or statements that officers must make to superiors at the department under threat of losing their job. Because the officers have no protection against self-incrimination, the statements cannot be used in criminal proceedings.

Wednesday’s central question is rooted in the case’s long and complicated history. Judge Philip Heagney ruled in December 2009 and again in April 2010 that the records were subject to the sunshine law and ordered them released. The St. Louis Board of Police Commissioners, which was at the time in charge of the department, decided not to appeal Heagney’s ruling.

Thirty-five officers who were interviewed as part of the investigation were eventually allowed to file a separate case asserting that the release of the records violated their constitutional right to privacy. It was Dierker who would eventually rule on that case, saying that the officer's assumption that the records would be kept private did not trump the presumption that documents generated by a public body must be open.

“In sum, public employees have no federal or state constitutional right of privacy to compel closure of governmental records pertaining to their performance of their official duties. The procedure prescribed by Garrity v. New Jersey for handling statements obtained by compulsion from public employees creates only a limited evidentiary privilege to prevent use of such statements in criminal prosecutions and recognizes no constitutional right to prevent disclosure of such statements to the public.”

In briefs filed with the court, the attorney for the police officers, Neil Bruntrager, disagreed sharply with Dierker’s analysis.

“If Missouri law recognizes that a public employee has a constitutional right to privacy within the Sunshine Law, how can the employee no longer have a constitutional right to privacy in their employment records outside the context of §610.010 et seq. RSMo?”

Additionally, Bruntrager said, police commanders did not need to promise the officers investigated as part of the ticket scandal that their Garrity statements would be kept secret to create the expectation of privacy. That expectation is created by the portion of the Missouri sunshine law that keeps records related to internal discipline private.

The American Civil Liberties Union of Missouri, representing John Chasnoff, said the officers are basing their arguments on the faulty assumption that the records are private.

The records in this case were created by a public body, and the default in Missouri is that public records are open unless the law says otherwise. The police officers aren’t claiming protection under the sunshine law, the brief continued, but cite no other law that would keep public records private.

“Second, even assuming, arguendo, that the Sunshine Law did create a privacy interest in a public record, it would not be a cognizable interest under the state or federal constitutions. Even where a state statute recognizes a privacy interest, the statutory interest alone does not create an interest that is cognizable under the constitution.”

Read the officer's initial and reply briefs.

Read John Chasnoff's brief.

The St. Louis Metropolitan Police Department remains a party to the case for the issue of attorney’s fees only.

Follow Rachel Lippmann 0n Twitter: @rlippmann