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Hemeyer v.KRCG-TV12/7/1999
This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.
Appeal From: Circuit Court of Cole County, Hon. Byron L. Kinder
Duane Benton, Judge
Opinion Vote: REVERSED AND REMANDED. White and Wolff, JJ., and Ahrens, Sp .J., concur; Holstein, J., concurs in part and Dissents in part in separate opinion filed; Price, C.J. and Limbaugh, J., concur in opinion of Holstein, J. Covington, J., not participating.
Opinion:
The circuit court ruled that a booking videotape was not a public record subject to disclosure under chapter 610 RSMo 1994. The Court of Appeals would have affirmed this ruling, but also would have remanded for an award of attorney's fees under section 610.027.5. This Court granted transfer. Mo. Const. art. V, sec 10. Reversed and remanded.
I.
During the night of April 25-26, 1997, a state representative was arrested for driving while intoxicated, and brought to the Cole County sheriff's office for booking. On April 28, KRCG-TV formally requested that the Sheriff release the videotape that included the representative's booking. The Sheriff refused and filed for declaratory judgment that the videotape was not a public record under chapter 610.
The Sheriff made the videotape to record any event that might lead to litigation. Unless the tape documents such an event, it is recycled, usually within a period of four-and-a-half to six-and-a-half days. No one place in the sheriff's office or jail is continuously recorded, although 28 places are sequentially viewed. If an event occurs that requires continuous recording, the system can be overridden to record in that one place.
The circuit court found that the videotape was not a public record under section 610.010(6) and therefore did not have to be disclosed to KRCG-TV.
II.
All public records shall be open to the public for inspection and duplication. Sections 610.011.1, 610.015. KRCG-TV argues that the booking videotape is a public record, as defined in section 610.010(6):
"Public record", any record, whether written or electronically stored, retained by or of any public governmental body. . . .
The parties stipulated that the Sheriff is a public governmental body. The Sheriff does not invoke any express exceptions in section 610.021. The issue is whether the videotape is "any record . . . retained by or of any public governmental body."
The Sheriff argues that the videotape is not a public record because it is not "retained by" him, since the tapes are regularly reused. Chapter 610 does not define "retain." This Court therefore relies on the plain and ordinary meaning of the word. Spradlin v. City of Fulton, 982 S.W.2d 255, 258 (Mo. banc 1998). The plain and ordinary meaning of a word is derived from the dictionary. Spradlin, 982 S.W.2d at 262 (citing section 1.090; Abrams v. Ohio Pacific Exp., 819 S.W.2d 338, 340 (Mo. banc 1991)). The ordinary meaning of the word retain is "to hold or continue to hold in possession or use: continue to have, use, recognize, or accept: maintain in one's keeping. . . ." Webster's Third New International Dictionary 1938 (1976).
Although the tapes are reused, they are still retained by the Sheriff. The plain and ordinary meaning of the word "retain" does not specify a length of time for holding or maintaining. See Missouri Protection and Advocacy Serv. v. Allan, 787 S.W.2d 291, 293 (Mo. App. 1990). The Sheriff retains the booking tapes for at least four-and-a-half days. At the time of the request, the Sheriff retained the tape of the state representative's booking.
III
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