VIENNA — Monday marked the first motion hearing in the City of Vienna v. Heitman, a civil court case concerning a records request Maries County Sheriff Chris Heitman filed earlier this year with the city.

According to a document filed on behalf of Heitman in response to a petition by the city and accessed via Missouri Case.net, the city on March 27 acknowledged that Heitman had made a Sunshine Law request for records from the Vienna Police Department. At that time, the city informed Heitman that it would take 14 to 21 business days to provide the requested records. On April 10, the city informed Heitman the records would be available no later than May 1 and said it would waive any fees associated with obtaining the records.

In a phone call on Monday, Heitman said his records request was submitted after a Jan. 17 article in the St. Louis newspaper Riverfront Times quoted Vienna Police Chief Shannon Thompson speaking “fabricated statements” and references to documents submitted to the Attorney General’s Office.

“I requested copies of those records that have been released to the media, as well as any additional records he may have, including records where he stated he was investigating my deputies,” Heitman said. “I was told I would receive those records, and the city has failed to produce those records.”

On May 2, attorney Nathan Nickolaus with Lauber Municipal Law, LLC filed a petition to the court on behalf of the city. The petition requests that the court rule on whether the records should remain closed. The petition states that Heitman had formally requested VPD records held by the city. According to the petition, the request includes, among other things, police reports and other records concerning the sheriff and his office employees.

The petition alleges that the requested records are investigative reports that are closed under Sunshine Law section 610.100.2(2) unless they are inactive. The section defines an inactive investigation as one that has “a decision by the law enforcement agency not to pursue the case; expiration of the time to file criminal charges pursuant to the applicable statute of limitations, or ten years after the commission of the offense; whichever date earliest occurs; finality of the convictions of all persons convicted on the basis of the information contained in the investigative report, by exhaustion of or expiration of all rights of appeal of such persons.”

The petition states that, to the best of the city’s knowledge, law enforcement is still pursuing the incidents in the requested records and none of the incidents have been litigated or had their appeal processes exhausted. The prosecutor has not elected to prosecute any of the incidents.

According to the petition, the requested records contain allegations of criminal activity on the part of the sheriff and certain deputies. It also cites 610.100 RSMo, which allows records that may be requested under Sunshine Law may be closed if the record “contains information that is reasonably likely to pose a clear and present danger to the safety of any victim, witness, undercover officer, or other person; or jeopardize a criminal investigation, including records which would disclose the identity of a source wishing to remain confidential or a suspect not in custody; or which would disclose techniques, procedures or guidelines for law enforcement investigations or prosecutions, that portion of the record shall be closed and shall be redacted from any record made available under this chapter.”

The petition states that the city believes releasing the records to Heitman would jeopardize those investigations and if he obtains records about his deputies he would share those with them. The city states that “upon information and belief,” the FBI is reviewing some or all of the records subject to a possible request for prosecution.

“The city of Vienna Police Department is denying me access to records I should be entitled to and filed a suit against me,” Heitman said in a phone call on Monday. “A counter-suit has been filed because of their actions. I hope the city will release those records to us so we don’t have to take any additional legal action against them.”

On May 12, attorney David F. Barrett entered an appearance on behalf of Heitman. Maries County Prosecuting Attorney Tony Skouby later joined as co-counsel.

On May 30, Barrett filed an “Answer, Affirmative Defenses and Counter-Claims” document on Heitman’s behalf. In the document, Heitman denies the petitioner’s allegations that the requested records are investigative reports and should remain closed. He did not have sufficient information to either admit or deny that the requested records included allegations of criminal conduct on the part of the sheriff and certain deputies though he denied the same.

In the document, Heitman clarifies that when he made the request he was acting in an official capacity as the sheriff rather than that of a private citizen.

The Answer section references the Riverfront Times article about Heitman. The Sunshine Law request included a copy of the article and a statement that Thompson had alleged in it that Heitman had engaged in “a litany of other wrongdoing, from financial misconduct to civil rights violations, arson to insurance fraud. He writes that he’d become extremely frustrated after making complaints to several state agencies and trying to get someone to look into Heitman for years.”

The Affirmative Defenses cites two reasons the court should bar the city from seeking a declaration that the records are closed. Under equitable estoppel, the document says, the city’s admission, statement or act is inconsistent with what it later sued upon. On the faith of that admission, Heitman took no action to enforce his rights under Sunshine Law. Under laches, the document cites the city’s alleged delay in delivering the requested documents without legal cause or excuse. Regarding both affirmative defenses, the document alleges that Heitman has suffered a delay in the discharge of his responsibilities and the administration of his office and incurred attorney fees as a direct result of the city’s actions.

The counter-claim section alleges that the requested records are subject to disclosure under Sunshine Law and the city violated the law by not returning those records within three days of the request.

Also on May 30, the city motioned for a change of venue citing the role of Heitman and his deputies as bailiffs in the court as a conflict of interest.

On Monday, Maries County Judge William E. Hickle approved a joint protective order by both parties. The order provides Heitman’s attorneys with the documents he requested to allow them to adequately represent him. The order prevents Heitman from accessing the records until the court makes a decision about their status. If the court finds the records are closed, or Heitman is not entitled to them, then his attorneys must destroy their copies. The court will also receive unredacted copies of the records and the circuit clerk will file them at a higher security level and mark them as confidential.

During the hearing, Hickle also recused himself and moved the case to Judge John B. Beger’s docket.

In a phone call on Monday, Vienna Mayor Tim Schell acknowledged the city’s involvement in litigation with the sheriff, but he said he was unable to comment and deferred questions to the city’s attorney in the case.

On Tuesday, Nickolaus said Heitman had requested records regarding criminal investigations of himself and his deputies. Sunshine Law leaves some questions about whether the records are open or closed because of the unknown status of the investigations. The purpose of the petition is for the judge to clear up the status.

“Before the judge recused himself, he authorized what we call a protective order,” Nickolaus said. “The records will be filed under seal, which allows the judge to review them. I expect that the judge won’t take very long to review them and then he’ll either release the records or he won’t release the records. It’s a way to protect the process and protect the chief because it’s obviously a highly political issue.”

Nickolaus, a lawyer specializing in Sunshine Law, said he had some uncertainty about the case because of the issue of whether Heitman requested the documents in his capacity as sheriff or as a private individual.

“It’s kind of complicated either way,” he said. “Under the Sunshine Law, law enforcement generally has greater access to closed records. Typically, if the Vienna Police Department is investigating something, and the sheriff needed those records for something that he is doing, those records would just be transferred. What makes it complicated is the records he requested aren’t just any records; they’re records about him. That’s why they needed the judge to decide. I really don’t know. I do a lot with Sunshine Law work, and I’ve really never come across something like this.”

“I think the issue has kind of been overblown,” he continued. “It doesn’t seem like the sheriff’s reacted very well. Really, all we’re trying to do is make sure that everything is done right. I’d be happy for the judge to say this record is open. We’d be releasing it to you, and to the sheriff and to the world. If the judge says the records are closed, then obviously we need to have them closed.”

During a phone interview, Heitman said VPD had told the sheriff’s office not to contact Thompson about law enforcement business because he is not currently working with the department. Schell confirmed on Monday that Thompson is still employed by the city. When asked more specifically about Thompson’s active status, Schell reiterated that he is still employed by the city.