Attorney General's Opinion No. 98-2001
Because municipal court records, except to the extent that they are administrative in nature, are not subject to the provisions of Chapter 610, RSMo, such records are not subject to disclosure under Chapter 610, RSMo. A person is not usually considered "arrested" as defined in Section 610.100.1, RSMo, if issued a traffic ticket but not taken into custody. Neither the internal auditor for the city of Kansas City nor members of the general public are entitled to access to the disposition portion of records referenced in Section 610.105, RSMo.
Contents of opinion
March 21, 2001
Office of the City Manager
29th Floor, City Hall
414 East 12th Street
Kansas City, MO 64106
Dear Mr. Collins:
You have submitted a request for an opinion of this office pursuant to the provisions of Section 610.027.5 RSMo which provides that a public governmental body which is in doubt about closing a particular record may seek an opinion of this office regarding how to proceed. You state within your letter that you are seeking answers to whether the internal auditor of the city of Kansas City or the general public has a right to access certain records from the municipal court of Kansas City. In your request you ask four questions:
1. Are municipal court records of persons arrested for municipal code violations records that are required to be closed under the provisions of Section 610.105 RSMo?
2. Can municipal court records of individuals who received a summons for property maintenance or nuisance violations, but are subsequently nolle prossed, dismissed, found not guilty, or receive a suspended imposition of sentence be released to the public?
3. Is a person considered "arrested" under the provisions of Section 610.100.1(1) if that person receives a traffic violation but is not taken into custody?
4. Who may access the "disposition portion" of records under Section 610.105 RSMo and, in particular, may the city's internal auditor access the records?
The responses to your first two questions are the same. Municipal court records are generally unavailable under the provisions of Chapter 610 RSMo. "Public governmental body" is defined at Section 610.010(4) RSMo 1999 Supp. as "any legislative, administrative, or governmental entity created by the constitution or statutes of this state ... judicial entities when operating in an administrative capacity." (Emphasis added). Municipal courts are part of the judiciary of this state. Article IV, Section 23 of the Missouri Constitution provides that each circuit court shall have municipal judges as provided by law with appropriate personnel to support them. The records of municipal courts involving the adjudication of matters before those courts are excluded from the purview of Chapter 610 RSMo in that such records are not in "an administrative capacity." However, the records that are within the records of a municipal court may be available from another entity, such as the law enforcement agency that initiated the charges.
Your third question deals with the definition of arrest under the provisions of Chapter 610 RSMo. Section 610.100.1(1) answers your question. "Arrest" is defined as:
[A]n actual restraint of the person of the defendant, or by his or her submission to the custody of the officer, under authority of a warrant or otherwise for a criminal violation which results in the issuance of a summons or the person being booked;
Under most circumstances described in the scenario set forth in your letter, i.e. an individual being issued a traffic ticket but not taken into custody, an "arrest" has not occurred.
The term "arrest" is normally understood to comprehend some form of physical detention or restraint of the person. See Section 544.180 RSMo 1994. The United States Supreme Court has ruled that the issuance of a traffic ticket does not constitute an "arrest" unless the person is restrained or taken into custody. Douglas v. Buder, 412 U.S. 430, 93 S.Ct. 2199, 37 L.Ed.2d 52 (1973). The Court has recently ruled that a traffic ticket is not an arrest that justifies a warrantless search. Knowles v. Iowa, 525 U.S. 113, 119 S.Ct. 484, 142 L.Ed.2d 492 (1998).
Your fourth question is answered by examination of Section 610.105 RSMo and other statutory references contained therein. The records become closed when cases are nolle prossed, dismissed, the accused is found not guilty or imposition of sentence is suspended, or if the accused is found not guilty by reason of mental disease or defect. You have asked whether the city's internal auditor has a right to examine the "disposition portion" of records.
Section 610.105 RSMo 1999 Supp. sets forth those categories of individuals who have a right to access the disposition portion of the records of such cases. In the event of an individual being found not guilty by reason of mental disease or defect, the statute allows law enforcement agencies, child care agencies, nursing homes, and in-home service providers to access the records under the procedures set forth in Section 610.120 RSMo. In the event of a nolle prosse, dismissal, a finding of not guilty or a suspended imposition of sentence, the entities that can access those disposition records are set forth in Section 610.120 RSMo and are the defendant, the sentencing advisory committee, courts, law enforcement agencies, child care agencies, department of revenue for driving record purposes, nursing homes, in-home service providers, division of workers' compensation to determine eligibility for crime victims' compensation, and to federal agencies for specified purposes. Nowhere within this statutory framework is an internal auditor designated as having a right to examine these records.
As shown above, Section 610.120 enumerates the persons to whom records closed under Section 610.105 shall be made available. The internal auditor is not included in any of the listed categories of persons. When a statute directs performance of certain acts by an enumerated class of persons, it implies that persons not included have no authority to perform the act. State ex rel. Tate v. Turner, 789 S.W.2d 240, 241 (Mo. App. 1990). Because the internal auditor is not included in the Section 610.120 list of persons to whom such records may be made available, the internal auditor has no authority to review the closed records. The same analysis applies to members of the general public, with the same conclusion.
This office addressed this same issue to the city of Kansas City in 1995 and reached this same conclusion. See Opinion Letter No. 158-95, a copy of which is enclosed. Although there were changes to Section 610.105 in 1998, there was no expansion of those entitled to see these records to include internal auditors.
Our responses to your first two questions are:
Because municipal court records, except to the extent that they are administrative in nature, are not subject to the provisions of Chapter 610, RSMo, such records are not subject to disclosure under Chapter 610 RSMo.
In response to your third question, a person is not usually considered "arrested" as defined in Section 610.100.1 RSMo if issued a traffic ticket but not taken into custody.
In response to your fourth question, neither the internal auditor for the city of Kansas City nor members of the general public are entitled to access to the disposition portion of records referenced in Section 610.105 RSMo.
Very truly yours,
JEREMIAH W. (JAY) NIXON