Defendants Department of Revenue, Director of Revenue, Custodian of Records of Department of Revenue and Carol Russell Fischer (Department), by and through counsel, Attorney General Jeremiah W. (Jay) Nixon and Assistant Attorney General Keith D. Halcomb, files the following answer in response to the petition filed by Lee Allen Martin:

No answer is required to the first six paragraphs of Martin's petition as his request speaks for itself but to the extent an answer is required, the Department denies each and every allegation.

1. The Department admits the allegations contained in ¶ 1, Part II, of Martin's petition.

1 Director of Revenue, Custodian of Records for the Department and Carol Russell Fischer are all the same person, and for purposes of this answer, are all referred to as the Director.

2. The Department admits the allegations contained in ¶ 2, Part II, of Martin's petition.

3. The Department admits the allegations contained in ¶ 3, Part II, of Martin's petition to the extent that it runs the Department pursuant to powers delegated to it under the Missouri Constitution and Missouri statutes and regulations.

4. The Department admits the allegations contained in ¶ 4, Part II, of Martin's petition.

5. The Department admits the allegations contained in ¶ 5, Part II, of Martin's

petition to the extent that Martin did follow up on previous requests, submitted and

answered via e-mail, by mailing the same request by U.S. Post in a letter dated March 24, 2001.

6. The Department denies the allegations contained in ¶ 6, Part II, of Martin's petition, except the Department admits that it sent a letter dated April 5, 2001, to Martin explaining why some of his requests could not be answered because the materials were not available in electronic format, and that further information was needed to respond to some of his requests.

7. The Department denies the allegations contained in ¶ 7, Part II, of Martin's petition.

8. The Department denies the allegations contained in ¶ 8, Part II, of Martin's petition.

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10. The Department is without sufficient information or belief to answer the allegations contained in ¶ 10, Part II, of Martin's petition, and therefore denies the allegations.

11. No answer is required for ¶ 11, Part II, of Martin's petition.

12. No answer is required for ¶ 12, Part II, of Martin's petition as the response of the Department speaks for itself.

13. The Department denies the allegations contained in ¶ 13, Part II, of Martin's petition.

14. The Department denies the allegations contained in ¶ 14, Part II, of Martin's petition.

15. The Department denies the allegations contained in ¶ 15, Part II, of Martin's petition.

16. The Department denies the allegations contained in ¶ 16, Part II, of Martin's petition.

17. The Department denies the allegations contained in ¶ 17, Part II, of Martin's petition.

18. The Department denies the allegations contained in ¶ 18, Part II, of Martin's petition as the Department has previously stated that the records Martin has requested are not available in electronic format.

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19. The Department denies the allegations contained in ¶ 19, Part II, of Martin's petition.

As a further answer and affirmative defense to Martin's allegations in this petition and without prejudice to its previous denials, the Department asserts the following affirmative defenses:

Martin has failed to allege sufficient facts upon which to permit the adducing of evidence and proof at trial and upon which to base any recovery against the Department. The suit should, therefore, be dismissed for failure to state a claim upon which relief could be granted, pursuant to Missouri Rule of Civil Procedure 55.27(a)(6).

Martin has not stated a claim to invoke the jurisdiction of this Court as the Director, being sued in her official capacity, is entitled to sovereign immunity and/or official immunity. A state official, if sued in her official capacity, may only~ be sued if the state has explicitly waived sovereign and official immunity and given permission to be sued. There is no waiver of sovereign or official immunity nor permission to sue the Director in this matter; therefore, this matter as related to the Director must be dismissed.2

2 The claim of official immunity also covers the Custodian of Records and Carol Russell Fischer.

The Department incorporates by reference each and every additional affirmative defense that may be uncovered or may be made known during the investigation and discovery in this case; consequently, the Department specifically reserves the right to amend its answer and include additional affirmative defenses at the time they are discovered.

The Department objects to Martin being able to file as a poor person, and states that this matter should be dismissed for failure to pay a filing fee.

WHEREFORE, the Department prays this Court to dismiss this action with prejudice, denying all Martin's requests for relief. Additionally, the Department requests that judgment be entered in its favor and costs be assessed against Martin, and for such other relief as this Court deems just and proper.

Respectfully submitted, JEREMIAH W. (JAY) NIXON Attorney General

KEITH D. HALCOMB

Assistant Attorney General

Missouri Bar No.43941

P.O. Box 899

Jefferson City, Missouri 65102-0899

(314) 751-8218

ATTORNEYS FOR DEFENDANTS

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I hereby certify that a true and correct copy of the foregoing was mailed, postage prepaid, this 28th Day of June, 2001, to:

Lee Allen Martin

7050 County Road 2810

West Plains, MO 65775

Keith D. Halcomb

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