For years, the St. Louis Metropolitan Police Department has employed the silk-stocking firm of Lewis, Rice & Fingersh to fight demands for internal-affairs files made in the course of litigation. Plaintiffs who've made requests for such files include both civilians who claim police brutality and officers facing discipline for alleged wrongdoing. A check of recent court cases shows the department has been losing its battles to keep the records secret.
The latest example is a case set for a court of appeals hearing tomorrow in which the department, using Lewis, Rice & Fingersh lawyers, is trying to overturn a decision by St. Louis Circuit Court Judge Steven Ohmer, who ruled last September that the department must turn over internal-affairs files to officers Dan Dell and Kevin Klassen, who are accused of perjury and falsifying reports.
During the September proceedings, internal-affairs commander Captain Reggie Harris (who has since been promoted to major) testified that the files must remain within the internal-affairs division, an assertion undermined when he was forced to admit that he'd sent IA records to the state Office of Chief Disciplinary Counsel in an attempt to convince the state to sanction Klassen's attorney, Nels Moss Jr., for an alleged conflict of interest.
Harris' attempt to punish Moss failed. So, too, has an effort by the Riverfront Times to force the department to reveal just how much taxpayer money it has spent on fruitless fights to keep IA files secret -- despite state laws and court rulings that make it clear the records must be released.
When the RFT on February 17 asked for payment vouchers for Lewis, Rice & Fingersh, Jane Berman Shaw, attorney for the Board of Police Commissioners and Chief Joe Mokwa, said the department would not respond to any public-records requests from the RFT -- until the newspaper paid an outstanding bill of $1,090 for 68 pages of blacked-out documents that fell far short of the newspaper's request for IA files. (For more information on the department's refusal to provide records on officers accused of wrongdoing, see "Dirty Little Secrets," published February 11.)
The newspaper replied that it would pay the bill as soon as the department provided the requested records. Shaw maintained that state law allowed the department to cut off access to public records based on outstanding account balances, but she backed off when the newspaper pointed out that while the law she cited states that the department can charge in advance, it says nothing whatsoever about denying records based on debt. In the interest of efficiency, Shaw said she'd check with the state attorney general's office about the law, but in the meantime would respond to RFT requests for public records.
One week after the RFT asked for the vouchers, Shaw sent the paper a letter claiming that the police department does not have any documents that could be interpreted as "payment vouchers." She did say the department keeps track of payments to Lewis, Rice & Fingersh on a monthly basis, and she could provide dollar amounts.
Eventually, the department disclosed that it paid the law firm $496,153.63 between 1999 and May 2003. Missing were dollar amounts for legal services provided during the past nine months, as well as an itemization of exactly what Lewis, Rice & Fingersh did to earn the lavish sum.
The department charged the newspaper $50 for the information it provided.
The RFT next requested a detailed accounting -- or, alternatively, if the department does not maintain such itemized accounts, we wanted to see any retainer agreements between the police and the law firm.
It turns out that the department does have written descriptions of what it spends money on, but getting the goods won't be cheap.
In a February 25 letter to the RFT headed "Re: Lewis, Rice & Fingersh Payment Vouchers," Shaw wrote that attorneys and paralegals had already spent a dozen hours poring through hundreds of pages of documents to produce the requested information, and the paper would be charged for their time. In other words, the department claims it doesn't have invoices and accompanying payment records readily available so that the media -- and the public -- can learn how tax money is spent. Only someone with deep pockets will have the privilege of knowing how the police spend money.
In lieu of copies, the RFT had asked to inspect the records at police headquarters so that the paper wouldn't get stuck with an astronomical bill. But Shaw, without citing any legal authority, stood firm: The department will charge for time spent compiling and redacting records, no matter what, and no documents will be released until payment is received in advance.
Jean Maneke, attorney for the Missouri Press Association, says the state Sunshine Law allows public agencies to charge for retrieving and copying records but contains no provisions that allow the government to charge for time spent censoring files. "The law says nothing about the cost of redaction," Maneke says.
The 30-year-old Sunshine Law also doesn't say that the government can charge for reviewing files that aren't removed from public offices. Section 109.180 of the Missouri Revised Statutes, passed by the Legislature in 1961, is even more explicit, stating that any citizen of Missouri has the right to inspect public records, and woe unto any public employee who denies access: "Any official who violates the provisions of this section shall be subject to removal or impeachment and in addition shall be guilty of a misdemeanor and upon conviction shall be punished by a fine not exceeding one hundred dollars, or by confinement in the county jail not exceeding ninety days, or by both the fine and the confinement."
In a February 27 letter to the paper, Shaw maintained that the statute requiring that citizens be allowed to inspect records doesn't apply to the Riverfront Times, though she didn't explain her reasoning.
Of course, it's tough to ask the police to arrest themselves. Indeed, even talking to department officials about anything is difficult. The department's media-relations division has stopped speaking to the RFT, referring all inquiries about public records to Shaw in the legal division. Shaw also refuses to speak directly to the newspaper. When the paper asked for an interview, the woman who answered the phone said the department has a new policy: All interactions between the media and the department's legal division must be in writing.
Life is apparently much easier for the city's daily newspaper. "With a reporter assigned to the St. Louis Police Department every day, we regularly obtain access to records on request at no charge," says Richard Weil, an assistant managing editor at the St. Louis Post-Dispatch. "If it's something for which the department chooses to require a formally worded freedom-of-information request, we go through that process. In recent experience, we have paid as little as nothing or as much as $125 to compensate for copying costs."