The Missouri Highway Patrol “knowingly” and “purposely” violated the state’s open records law in the days and months after the drowning of Brandon Ellingson, a circuit judge has ruled.
The agency and its custodian of records didn’t properly respond to Sunshine Law requests by attorneys for the Ellingson family and in some cases didn’t hand over requested information, Circuit Judge Jon E. Beetem wrote in a 27-page ruling filed Wednesday.
“These documents could all be considered highly damaging to the (Highway Patrol), and the wrongful nondisclosure of these documents is troubling to the Court,” Beetem wrote. “…Defendants have failed to demonstrate reasonable cause for their failure to properly respond to any of Plaintiffs’ Sunshine Act requests.”
Beetem, who heard the bench trial in February, ordered the patrol to pay the family a fine of $5,000 and all court costs. Attorneys for the family have 30 days from the date of the ruling to submit an affidavit of attorney fees and expenses. The court will later determine how much the patrol should pay for plaintiff attorney costs.
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“Obviously our clients are gratified by the court’s ruling,” said Jerry Spaeth, lead counsel at Whitfield & Eddy Law in Des Moines, Iowa. The firm represented the Ellingson family in the open records lawsuit.
Highway Patrol Capt. John Hotz said his agency was represented by the Missouri attorney general’s office and referred questions there. Nanci Gonder, a spokeswoman for Attorney General Chris Koster, said the office was reviewing the ruling.
Trooper Anthony Piercy arrested Ellingson on May 31, 2014 for suspicion of boating while intoxicated on the Lake of the Ozarks and headed to a field office for a sobriety test, traveling at speeds up to 46 mph. Ellingson ended up in the water and the life vest — which witnesses say Piercy didn’t properly secure on Ellingson — soon came off. The trooper eventually jumped in to try to save Ellingson, but couldn’t.
Soon after Ellingson’s death, his family asked the patrol for information, including the GPS coordinates on Piercy’s boat, text messages between troopers involved that evening and results of the swim test Piercy took to work on the water.
The patrol provided a chart regarding Piercy’s swim test on January 2015, according to Beetem’s ruling. But it did not include the results of the test.
“After requesting this information on August 19, 2014, Plaintiffs waited over a year to receive Piercy’s swim test results,” said Beetem, who pointed out that the patrol didn’t communicate with the family’s attorneys within the required three days of the request. “The court has reviewed the swim test results, as well as the swim test criteria and concludes that the information contained in those test results was important information specifically requested by Plaintiffs and potentially damaging to the (Highway Patrol).”
During a monthslong investigation of Ellingson’s death, The Star also requested the results of Piercy’s swim test but did not receive the information.
The judge also said that the patrol and its custodian of records, Lt. Keverne McCollum, didn’t provide a “valid excuse” for failing to disclose some training documents until 215 days after the request, and other materials for a year.
“It just took so long to get the results back,” Ellingson’s father, Craig Ellingson, told The Star Thursday. “They knew what they were doing — they were stalling.”
In December, a year after the family filed the open records lawsuit as well as a civil lawsuit, a special prosecutor charged Piercy with involuntary manslaughter. The case was set for trial on Sept. 26 but has been canceled, according to the state’s online court database. It isn’t clear when a new date will be set. It is possible that the trial won’t be held until 2017.
The charge against Piercy is a Class C felony carrying a punishment of up to seven years in prison, up to a year in the county jail, a $5,000 fine or some combination.
“It’s completely frustrating,” Craig Ellingson said of the criminal trial being rescheduled. “To drag things on like they’re doing it. I don’t know the normal time frame, but to me, two years has been a long time.”
Two Missouri troopers set out to re-create the ride and conditions on Trooper Anthony Piercy's boat. This run reaches average speeds of 38 to 40 mph. Piercy was going 39.1 to 43.7 mph just before Brandon Ellingson left the boat and drowned May 31. Ellingson's hands were cuffed behind his back. Video obtained from Missouri Highway Patrol.Edited by Monty Davis and Laura Bauer Missouri Highway Patrol