1. General Statement
This policy is established by the Board of Governors of Missouri State University to provide standardization and consistency in the application of Senate Bill 2 (Laws, 1987) - Open Meetings and Records Law (the "Act"), as amended by the 89th General Assembly (1998) and 92nd General Assembly (2004).
All actions taken under this policy are subject to the provisions of the Open Meetings and Records Law, Section 610.010 et seq., R.S.Mo. Specifically, this policy establishes a written policy pursuant to Section 610.028.2, R.S.Mo.
The following definitions apply to this Policy:
Record closed to the public.
Copies as provided in Section 610.026 R.S.Mo. and the “Fees” section of this policy.
Public Governmental Body
The Board of Governors of Missouri State University (the "Board"), and any committee appointed by the Board which is authorized to report to the Board; any advisory committee appointed by or at the direction of the Board for the specific purpose of recommending, directly to the Board or the President of the University (hereinafter "President"), policy or policy revisions or expenditures of public funds, or any policy advisory committee or group appointed by the President at the direction of the Board for the specific purpose of recommending directly to the Board or the President policy, policy revisions or expenditures of public funds provided, however, the staff of the President shall not constitute such a policy advisory committee; and any "quasi-public governmental body" defined as any person, corporation or partnership organized pursuant to Chapters 352, 353, or 355, R.S.Mo., or unincorporated association which either (a) has as its primary purpose to enter into contracts with public governmental bodies or to primarily engage in activities carried out pursuant to agreements with the Board, or (b) performs a public function as evidenced by a statutorily based capacity to confer or otherwise advance, through approval, the allocation or issuance of tax credits, tax abatement, public debt, tax-exempt debt, right of eminent domain or the contracting of lease-back agreements on structures whose annualized payments commit public tax revenues; or any association that directly accepts the appropriation of money from a public governmental body, but only to the extent that a meeting, record or vote relates to such appropriation. The Custodian of Records shall maintain a list of policy advisory committees described in this paragraph.
Any meeting of a public governmental body subject to Sections 610.010 to 610.030, R.S.Mo., at which any public business is discussed, decided or public policy formulated, whether such meeting is conducted in person or by means of communication equipment, including, but not limited to, conference call, video conference, internet chat, or internet message board, but not including an informal gathering of members of a public governmental body for ministerial or social purposes when there is no intent to avoid the purposes of this policy, but the term shall include a public vote of all or a majority of the members of the Board, by electronic communication or any other means, conducted in lieu of holding a public meeting with the members of the Board gathered at one location to conduct public business.
- Any record, whether written or electronically stored, retained by or of any public governmental body including any report, survey, memorandum, or other document or study prepared for the Board by a consultant or other professional service paid for in whole or in part by public funds; including records created or maintained by private contractors under an agreement with a public governmental body or on behalf of a public governmental body; however, "public record" shall not include any internal memorandum or letter received or prepared by or on behalf of a member of a public governmental body consisting of advice, opinions, and recommendations in connection with the deliberative decision-making process of the public governmental body, unless such records are retained by the Board or presented at a public meeting. Any document or study prepared for a governmental public body by a consultant or other professional service as described in this subdivision shall be retained by the public governmental body in the same manner as any other public record. Personally identifiable student records maintained by the University shall be open for inspection to students, in accord with the Family Educational Rights and Privacy Act.
- Any member of any public governmental body who transmits any message relating to public business by electronic means shall also concurrently transmit that message to either the member’s public office computer or the Custodian of Records in the same format. The provisions of this section shall only apply to messages sent to two or more members of that body, so that, when counting the sender, a majority of the body’s members are copied. Any such message received by the Custodian or at the member’s office computer shall be a public record subject to the exceptions of Section 610.021.
The purpose of this policy is to carry out the provisions of the Missouri Open Meetings and Records Law with regard to the release of information on any meeting, record or vote and the availability and access to public meetings and public records, and to conduct the public business of the Board in accord therewith.
Public records may be in the form of paper, microfilm or electronic media. The records may be made available in the format in which they are stored. No interpretation of records pursuant to the Open Meetings and Records Law will be made.
Agencies are authorized to close meetings, records and votes unless disclosure is otherwise required by law. To the extent they relate to the following, the following records shall be closed:
- Legal actions [610.021(1), R.S.Mo.] - 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. However, any minutes, vote or settlement agreement relating to legal actions, causes of action or litigation involving a public governmental body or any agent or entity representing its interests or acting on its behalf or with its authority, including any insurance company acting on behalf of the public governmental body as its insured, shall be made public upon final disposition of the matter voted upon or upon the signing by the parties of the settlement agreement, unless prior to final disposition, the settlement agreement is ordered closed by a court after a written finding that the adverse impact to a plaintiff or plaintiffs to the action clearly outweighs the public policy considerations of Section 610.011, however the amount of any moneys paid by, or on behalf of, the public governmental body shall be disclosed; provided, however, in matters involving the exercise of the power of eminent domain, the vote shall be announced or become public immediately following the action on the motion to authorize institution of such a legal action. Legal work product and all privileged written communication from legal counsel shall be considered a closed record;
- Leasing, purchase or sale of real estate by a public governmental body [610.021(2), R.S.Mo.] - where public knowledge of the transaction might adversely affect the legal consideration therefore; however, any minutes or vote or public record approving a contract relating to the leasing, purchase or sale of real estate by a public governmental body shall be made public upon execution of the lease, purchase or sale of the real estate;
- Hiring, firing, disciplining or promotion of particular employees when personal information (relating to performance or merit) about the employee is discussed or recorded. However, any vote on a final decision, when taken by a public governmental body, to hire, fire, promote or discipline an employee of a public governmental body shall be made available with a record of how each member voted to the public within seventy-two (72) hours of the close of the meeting where such action occurs; provided, however, that any employee so affected shall be entitled to prompt notice during the seventy-two hour (72) hour period before such decision is made available to the public [610.021(3), R.S.Mo.];
- Nonjudicial mental or physical health proceedings involving identifiable persons, including medical, psychiatric, psychological or alcoholism or drug dependency diagnosis or treatment [610.021(5), R.S.Mo.];
- Scholastic probation, expulsion or graduation of identifiable individuals, including records of individual test or examination scores [610.021(6), R.S.Mo.]; however, personally identifiable student records shall be open for inspection by the parents, guardian or other custodian of students under the age of eighteen (18) years and by the parents, guardian or other custodian and the student if the student is over the age of eighteen (18) years, as provided by the University's policy pursuant to the Family Educational Rights and Privacy Act;
- Testing and examination materials, before the test or examination is given or, if it is to be given again, before so given again [610.021(7), R.S.Mo.];
- Welfare cases of identifiable individuals [610.021(8), R.S.Mo.];
- Preparation, including any discussions or work product, on behalf of a public governmental body or its representatives for negotiations with employee groups [610.021(9), R.S.Mo.];
- Software codes for electronic data processing and documentation thereof [610.021(10), R.S.Mo.];
- Specifications for competitive bidding until either the specifications are officially approved by the Board or the specifications are published for bid [610.021(11), R.S.Mo.];
- Sealed bids and related documents, until the bids are opened; and sealed proposals and related documents or any documents related to a negotiated contract until a contract is executed, or all proposals are rejected [610.021(12), R.S.Mo];
- Individually identifiable personnel records, performance ratings or records pertaining to employees or applicants for employment, except that this exemption shall not apply to the names, positions, salaries and lengths of service of officers and employees of the Board and other public agencies once they are employed as such, and the names of private sources donating or contributing money to the salary of a chancellor or president at all public colleges and universities in the State of Missouri and the amount of money contributed by the source. [610.021(13), R.S.Mo.];
- Records which are protected from disclosure by law [610.021(14), R.S.Mo.];
- Meetings and public records relating to scientific and technological innovations in which the owner has a proprietary interest. [610.021(15), R.S.Mo.];
- Confidential or privileged communication between a public governmental body and its auditor, including all auditor work product; however, all final audit reports issued by the auditor are to be considered open records pursuant to this policy. [610.021(17), R.S.Mo.].
- Operational guidelines and policies developed, adopted, or maintained by any public agency responsible for law enforcement, public safety, first response, or public health for use in responding to or preventing any critical incident which is or appears to be terrorist in nature and which has the potential to endanger individual or public safety and health. Nothing in this exception shall be deemed to close information regarding expenditures, purchases, or contracts made by an agency in implementing these guidelines or policies. When seeking to close information pursuant to this exception, the agency shall affirmatively state in writing that disclosure would impair its ability to protect the safety or health of persons, and shall in the same writing state that the public interest in nondisclosure outweighs the public interest in disclosure of the records. This exception shall sunset on December 31, 2008; [610.021(18) R.S.Mo.]
Existing or proposed security systems and structural plans of real property owned or leased by a public governmental body, and information that is voluntarily submitted by a non-public entity owning or operating an infrastructure to any public governmental body for use by that body to devise plans for protection of that infrastructure, the public disclosure of which would threaten public safety;
- Records related to the procurement of or expenditures relating to security systems purchased with public funds shall be open;
- When seeking to close information pursuant to this exception, the public governmental body shall affirmatively state in writing that disclosure would impair the public governmental body’s ability to protect the security or safety of persons or real property, and shall in the same writing state that the public interest in nondisclosure outweighs the public interest in disclosure of the records.
- Records that are voluntarily submitted by a nonpublic entity shall be reviewed by the receiving agency within ninety days of submission to determine if retention of the document is necessary in furtherance of a state security interest. If retention is not necessary, the document shall be returned to the nonpublic governmental body or destroyed.
- This exception shall sunset on December 31, 2008. [610.021(19) R.S.Mo.]
A Custodian shall be appointed by the President of the University who shall be responsible for the maintenance of that public governmental body's records. The identity, location and address of this Custodian is to be made available on request.
This Administrative Policy will be open to public inspection at the office of the Custodian, subject to the following conditions:
- Public access for inspection and copying of records will be given during the normal working hours of the public governmental body. Those hours will be 8:00 a.m. to 5:00 p.m., Monday through Friday, unless otherwise established, and excluding state established holidays. No person shall remove original public records from the public governmental body's office without written permission of the designated records Custodian.
- Each request for access to a public record shall be acted upon as quickly as is reasonably possible. The maximum response time permitted by law is the end of the third business day following the date the request is received by the Custodian; however, the period of time allowed to provide the document may exceed three (3) days for reasonable cause. If records are requested in a certain format, the public body shall provide the records in the requested format, if such format is available.
- If access cannot be granted immediately, the Custodian shall give a detailed explanation of the cause for delay and the place, date and time that the record will be available. The period for document production may exceed three (3) days for reasonable cause.
- If access is denied, the records Custodian shall provide, upon request, a written statement of the grounds for such denial citing the specific statutory provision under which access is denied. Such written statement shall be provided within three (3) business days of date that the request for the statement is received. (Bd. Min. 12-17-93; Res. Board Policies No. 11-93)
- Fees for copying public records, except those records restricted under Section 32.091, R.S. Mo, shall not exceed ten cents per page for a paper copy not larger than nine by fourteen inches, with the hourly fee for duplicating time not to exceed the average hourly rate of pay for clerical staff of the public governmental body. Research time required for fulfilling records requests may be charged at the actual cost of research time. Based 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 per search, research, and duplication time. Prior to producing copies of the requested records, the person requesting the records may request the public governmental body to provide an estimate of the charge to the person requesting the records.
- Fees for providing access to public records maintained on computer facilities, recording tapes or disks, video tapes or films, pictures, maps, slides, graphics, illustrations, or similar video or visual items or devices, and for paper copies larger than nine by fourteen inches shall include only the cost of copies, staff time, which shall not exceed the average hourly rate of pay for staff required for making copies and programming, if necessary, and the cost of the disk, tape, or other medium used for the duplication. Fees for maps, blueprints, or plats that require special expertise to duplicate may include the actual rate of compensation for the trained personnel required to duplicate such maps, blueprints, or plats. If programming is required beyond the customary and usual level to comply with a request for records or information the fees for compliance may include the actual costs of such programming.
- The fee may be waived or reduced if such action is in the public interest because it is likely to contribute significantly to public understanding of the operations of activities of the public governmental body and is not primarily in the commercial interest of the Requestor.
- The Custodian may give a written estimate of the cost to research and duplicate a record to the requesting party. The Custodian may require the requesting party to deposit up to fifty percent (50%) of the estimated cost of research and duplication prior to the undertaking of such an endeavor. The requesting party shall pay the actual cost, or balance due from the deposit, at the time of provision of the documents. The forms of acceptable payment for such documents are cash, cashier's check, money order or personal check.
- The Custodian shall remit all moneys received for fees charged pursuant to this policy to the Bursar, or designee, for deposit to the Board's accounts.
Notices of open meetings of the public governmental body shall provide required notice in accordance with the following:
- Notices shall give the time, date and place of each meeting, its tentative agenda, in a manner reasonably calculated to advise the public of the matters to be considered, and if the meeting will be conducted by telephone or other electronic means, the notice of the meeting shall identify the mode by which the meeting will be conducted and the designated location where the public may observe and attend the meeting. If the meeting is to be by internet chat, internet message board, or other computer link, the public governmental body shall post a notice of the meeting on its website in addition to its principal office and shall notify the public how to access that meeting. Copies of the notice shall be made available to representatives of the news media who request notice of meetings of the Board, concurrent with the notice being made available to the members of the public governmental body, and by posting same on a bulletin board easily accessible to the public and clearly designated for that purpose at the Board Room, Carrington Hall, Missouri State University.
- Notices shall be given at least twenty-four (24) hours exclusive of weekends and state holidays prior to the commencement of any meeting of the public governmental body, unless for good cause such notice is impossible or impractical, in which case as much notice as is reasonably possible shall be given. Each meeting will be held in a place reasonably accessible to the public, and of sufficient size to accommodate the anticipated attendance by members of the public, at a time reasonably convenient to the public, unless for good cause such a place or time is impossible or impractical. Every reasonable effort shall be made to grant special access to the meeting to handicapped or disabled individuals.
- A public body shall allow for the recording by audio tape, video tape, or other electronic means of any open meeting. Such meeting shall be conducted so as to minimize disruption to the meeting, as determined by the Chair of the meeting, or the public body as a whole if it chooses by motion and vote to overrule the Chair. No audio recording of any meeting, record, or vote closed pursuant to the provisions of Section 610.021 shall be permitted without permission of the public body.
- Minutes or journal of open and closed meetings shall be taken and retained, including but not limited to a record of any votes taken at such meeting. The minutes shall include the date, time, place, members present, members absent and a record of any votes taken. When a roll call vote is taken, the minutes shall attribute each "yea" and "nay" vote or abstinence if not voting to the name of the individual of the public governmental body. Any votes taken during a closed meeting shall be taken by roll call. When it is necessary to take votes by roll call in a meeting of the public governmental body, due to an emergency of the public body, with a quorum of the members of the public body physically present and in attendance and less than a quorum of the members of the public governmental body participating via telephone, facsimile, Internet, or any other voice or electronic means, the nature of the emergency of the public body justifying that departure from the normal requirements shall be stated in the minutes. Where such emergency exists, the votes taken shall be regarded as if all members were physically present and in attendance at the meeting.
- When necessary to hold a meeting on a less than twenty-four (24) hour notice, or at a place that is not reasonably accessible to the public, or at a time that is not reasonably convenient to the public, the nature of the good cause justifying that departure from the normal requirements shall be stated publicly at the open meeting and recorded in the minutes.
- The public governmental body proposing to hold a closed meeting or vote shall give notice of the time, date and place of each such closed meeting or vote and the reason for holding it by reference to the specific exemption set forth in the “Exceptions” Section above, and compliance with the requirements of notice set forth in the “Open Meetings” Section above.
- Except as set forth in subparagraph above, no meeting or vote may be closed without an affirmative public vote of the majority of the quorum of the public governmental body. The vote of each member of the public governmental body on the question of closing a public meeting or vote and the specific reason for closing that public meeting or vote by reference to a specific section of the Act as set forth in the “Exceptions” Section above, shall be announced publicly at an open meeting of the public governmental body and entered into the minutes.
- Any meeting or vote closed shall be closed only to the extent necessary for the specific reason announced to justify the closed meeting or vote. The public governmental body shall not discuss any business at a closed meeting, record or vote which does not directly relate to the specific reason announced to justify the closed meeting or vote. When there will be an open session following a closed meeting, the closed meeting shall close only an existing portion of the meeting facility necessary to house the members of the public governmental body in the closed session, allowing members of the public to remain to attend any subsequent open session held by the public governmental body following the closed session.
- In the event any member of a public governmental body makes a motion to close a meeting, or a record, or a vote from the public and any other member believes that such motion, if passed, would cause a meeting, record, or vote to be closed to the public in violation of any provision of Chapter 610, such latter member shall state his or her objection to the motion at or before the time is taken on the motion. The public governmental body shall enter into the minutes of the public governmental body any objection made pursuant to this subsection. Any member making such an objection shall be allowed to fully participate in any meeting, record, or vote that is closed from the public over the member’s objection. In the event the objecting member also voted in opposition to the motion to close the meeting, record or vote at issue, the objection and vote of the member as entered in the minutes shall be an absolute defense against any claim filed against the objecting member pursuant to Section 610.027.
Procedure - Document Request
- Requestor shall submit a "Request for Document" form, signed by the Requestor, identifying the organization, if any, which he/she represents.
- The Custodian determines if information requested is an open or closed record. If the Custodian is in doubt as to whether a record is open or closed, the Custodian may seek a final opinion of the Attorney General or an attorney for the public governmental body. If a closed record, the Custodian will so indicate and return the request to Requestor. If an open record, Custodian reviews request and provides an estimate of charges for information. If the Custodian is unable to retrieve documents immediately, the Requestor is provided with time, date and place when the record will be available and the reason for the delay. The period for document production will not exceed the end of the third business day following receipt of the request, unless there is reasonable cause. If records are requested in a certain format, the public body shall provide the records in their requested format, if such format is available.
- If a public record contains material which is not exempt from disclosure, as well as material which is exempt from disclosure, the Custodian shall separate the exempt from the non-exempt and make the non-exempt material available for examination and copying pursuant to this policy.
- The Custodian will determine appropriate fees as provided by this policy, and inform the Requestor. The Requestor provides a fifty percent (50%) deposit, if required by the Custodian.
- Staff performs necessary document research and copying and provides document(s) to Requestor.
- Requestor pays balance of research cost and copying cost at time of receipt, and acknowledges receipt of same in writing, with signature required.
- To the extent reasonably possible, access to records kept in electronic format will be made available to the public in electronic format. A public governmental body may not enter into a contract for the creation or maintenance of a public records database if that contract impairs the ability of the public to inspect or copy the public records of that agency, including public records that are online or stored in an electronic record keeping system used by the agency. Such contract may not allow any impediment that as a practical matter makes it more difficult for the public to inspect or copy the records than to inspect or copy the public governmental body’s records. For purposes of this section, a usable electronic format shall allow, at a minimum, viewing and printing of records. However, if the public governmental body keeps a record on a system capable of allowing the copying of electronic documents into other electronic documents, the public governmental body shall provide data to the public in such electronic format, if requested. The activities authorized in this policy will not take priority over the primary responsibilities of the public governmental body. For purposes of this section the term “electronic services” means on-line access or access via other electronic means to an electronic file or data base. This subsection shall not apply to contracts initially entered into before August 28, 2004.
- Public governmental bodies shall include in a contract for electronic services provisions that:
- Protect the security and integrity of the information system of the public governmental body and of information systems that are shared by public governmental bodies; and
- Limit the liability of the public governmental body providing the services.
- Each public governmental body may consult with the division of data processing and telecommunications of the office of administration to develop the electronic services offered by the public governmental body to the public pursuant to this section.
- In the event there is service of a summons, petition, complaint, counterclaim, or cross claim in a civil action brought to enforce the provisions of Section 610.010 -610.016, the Custodian that is the subject matter of the action shall not transfer custody, alter, destroy, or otherwise dispose of the public record sought to be inspected and examined, not withstanding the application of an exemption pursuant to Section 610.021 or the assertion that the requested record is not a public record until the court directs otherwise.
Disclosure of Closed Records
Any information contained in closed records may not be disclosed in any form that would allow identification of individual persons or entities unless:
- 1. Disclosure of such information is made to a person in that person's official capacity representing an executive agency and the disclosure is necessary for the requesting executive agency to perform its constitutional or statutory duties or disclosure is otherwise required by law.
- 2. Such closed information may be disclosed as set forth above, however, as a condition of disclosing such information, the Custodian may require the requesting executive agency to submit: (1) the constitutional or statutory duties necessitating the disclosure of such information; (2) the name and official capacity of person or persons to whom such information will be disclosed; (3) an affirmation that such information will be used only in furtherance of such constitutional or statutory duties; and (4) the date upon which the access is requested to begin, when the request is for continuous access.