IN THE CIRCUIT COURT OF COLE COUNTY
STATE OF MISSOURI

Lee Allen Martin
Plaintiff,
VS.
DEPARTMENT OF REVENUE,
et al.,
Defendants.
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CASE #01CV324209

MOTION DISMISS AND SUPPORTING SUGGESTIONS

Defendants Department of Revenue, et at., (all referred to as "Defendants") by and through counsel, Attorney General Jeremiah W. (Jay) Nixon and Assistant Attorney General Keith D. Haleomb, hereby moves this Court to dismiss this matter as plaintiff Lee Martin has failed to state a claim upon which relief can be granted. Missouri Rule of Civil Procedure 55.27(a)(6). In support of their motion, Defendants offer the following:

Argument

Martin filed his action against Defendants claiming ifiat Defendants failed to answer his Sunshine Law requests properly. Martin submitted a Sunshine Law request to Carol Russell Fischer, Director of Revenue, in a letter dated March 24, 2001, requesting the following items: (See: Letter from Martin to Carol Russell Fischer, Attached as Attachment 1).

  1. A driver's license application in electronic format;
  2. The policies and procedures of the Department of Revenue, in electronic format;
  3. The policies and procedures detailing the interaction between the Department of Safety (sic)' and the Department of Revenue, in electronic format;
  4. To view all applications for drivers' licenses presently on file with the Department of Revenue;
  5. The oath of office for Department of Revenue personnel, in electronic format;
  6. The policies and procedures of the legal department of the Department of Revenue, in electronic format.

Five of Martin's sunshine law requests stated that he wanted the information in electronic format. However, Missouri law does not require a governmental body to provide records in electronic format. 610.029. 1 RSMo. 2000.2 while the Sunshine Law states that governmental agencies are encouraged to provide information to the public in electronic format, it does not require it.

Martin's remaining Sunshine Law request stated that he wanted to view all the applications for drivers' licenses on file with the Department of Revenue. while considering that there are millions of licensed drivers in Missouri, such records are required by law to be kept confidential. 32.090 and 32.091. Section 32.090.3 states that "personal information obtained by the department shall not be disclosed to any person requesting such personal information except as provided in section 32.091." Section 32.091 .2 states that the Department may disclose individual motor vehicle records "only if the department has obtained the express consent of the person to whom such personal information pertains." Martin has not provided, nor has the Department obtained, consent from the millions of Missouri licensed drivers that is required before the Department could allow Martin access to applications for drivers' licenses on file with the Department.

Standard for Motion to Dismiss

A matter should be dismissed for failure to state a claim upon which relief can be granted when a plaintiff's petition cannot establish any grounds for relief. Prenger V. Baumhoer 914 S.W.2d 413, 415 (Mo.App.W.D. 1996). A petition is "reviewed in an almost academic manner, to determine if the facts alleged meet the elements of an alleged cause of action..." Nazeri v. Missouri Valley College, 860 S.W.2d 303, 306 (Mo.banc 1993). If all allegations in plaintiff's petition are deemed true, and still there is no legally cognizable claim, a mafler shall be dismissed.

A person cannot maintain a Sunshine Law claim for failure to provide records unless they have first made a Sunshine Law request and been denied. 610.027.1. Therefore, to maintain his action, Martin had to establish that he first made a Sunshine Law request to the Department. Martin did so by incorporating by reference and attaching a copy of his Sunshine Law request to his petition. (See; Attachrnent 1).

Martin's petition, while difficult to understand, basically reiterates that he wanted the requested information in electronic format, except that he wanted "access" to individual drivers' license applications. Martin's prayer (not as labeled as such in his petition), demands that the Department provide to him, in electronic format, an application for a driver's license, the policies and procedures of the Department, and the policies and procedures for the "Department of Revenue Personnel..." (See Attached Petition, next to last page, unnumbered). The only other demand Martin makes is that he be given "access to public applications for driver's license on file with the Department.. ." (See Attached Petition).

Martin's requests can be placed in two categories: (1) Records he wanted supplied in electronic format; and (2) Records that the Department is prohibited by law from disclosing. Even if Martin's allegation are deemed true for purposes of this motion, he has not stated any basis for relief. The Department is not required to provide Martin with any records in electronic format, and is prohibited by law from providing him the other information he requested. 610.029.1 and 32.090.

Therefore, the only thing this Court can do is dismiss Martin's petition as he has failed to state a claim upon which relief can be granted.

WHEREFORE, Defendants respectlully request this Court to dismiss this matter as Martin has failed to state a claim upon which relief can be granted.

There is no Missouri governmental agency named the Department of Safety.
All statutory references are to RSMo. 2000, unless otherwise indicated.

Attachment #1

Attachment #2

Respectfully submitted,
JEREMIAH W. (JAY) NIXON
Attorney General
KEITH D. HALCONIB
Missouri Bar No.43941
Assistant Attorneys General
Earl D. Krause
Missouri Bar No.51157
Assistant Attorney General
P.O. Box 899
Jefferson City, Missouri 65102-0899
(573)751-3321

ATTORNEYS FOR DEFENDANTS

CERTIFICATE OF SERVICE
 I hereby certify that a true and correct copy of the foregoing was mailed, postage prepaid, this day of April, 2002, to:

Lee Allen Martin
7050 County Road 2810
West Plains, MO 65775

Keith D. Halcomb