The Missouri Sunshine Law, enacted in 1973 as a commitment to open government, has had just two updates during the computer age, and officials say complying can have unintended consequences.
JEFFERSON CITY, Mo. — The state’s commitment to open government is longstanding, two panelists told a full audience of public employees during a packed session at the Missouri Digital Government Summit, but its so-called “sunshine law” hasn’t been fully retooled to address challenges agencies face in the computer age.
The Missouri Sunshine Law was approved by the General Assembly in 1973 to open “meetings, records, votes, actions and deliberations of public governmental bodies” to the public, speakers told a roomful of officials during the June 13 panel.
But speaker Rochelle Reeves, director of legal services for the Missouri Lottery, said that while the law “contemplates electronic records,” it “largely has not been updated to contemplate modern technology.”
As with other aspects of Internet access and cybersecurity, panel members said common sense rules apply as much to state, county and city staffers on the job as to the citizens they serve.
They cautioned officials to be mindful what they send via email and put on social media — especially if it’s work-related — and to not do public business on a private server because that could violate records retention or record destruction policies.
Two portions of the state’s Sunshine Law, however, have kept pace with the times, Reeves said.
In a 2004 update, Section 610.025 was added, requiring “any member of a public governmental body” who sends an “electronic” message relating to public business to send a copy to either his or her public computer or to the state’s custodian of records.
The provision applies only to messages sent “to two or more members of that body” comprising, with the sender, a majority.
Added slightly later, Section 610.100 included verbiage about body camera footage in the law making it, Reeves said, “very evident” that the General Assembly “expects public bodies to be able to take a video and edit it and still disclose it to the public.”
Edited footage may be released to the public, she noted, but some people and entities — courts, for example — can even obtain portions that were removed.
Reeves said this is virtually “the only other place” in the Sunshine Law to go into such detail about “what should happen.”
“What are we doing about text messages? What are we doing about Facebook, what are we doing about Twitter? Are we just counting on Facebook to keep it forever and not worrying about that? These are all things that our current law doesn’t advise,” she said.
She and fellow presenter Peggy Landwehr, special counsel in the administration for the Division of Legal Services within the state Department of Social Services, counseled agency members to preserve their electronic records and to never delete emails or destroy electronic records upon receiving a Freedom of Information Act (FOIA) request.
They pointed out that Missouri has saved every state government email since 2008.
The two speakers also offered a series of suggestions to agencies grappling with public records act requests.
Landwehr said officials may want to consider investing in e-discovery software systems capable of segregating certain groups of employees, doing “some really good searches,” de-duplicating the results, and “clustering” documents with similar words.
Reeves suggested that agencies consider adding frequently requested information to their websites, and pointed out their three-day window to respond to a FOIA request is just that: a window to respond, not necessarily to provide completed results if doing so is impossible in 72 hours.
But during a discussion of case law, Brad DePriest, network systems manager for the city of St. Louis, voiced a common concern. DePriest told Reeves and Landwehr a lawsuit they referenced seemed analogous to a request his city got from a company wanting a records search of “all our purchases of software over a period of time.”
“It seems like, in this case, a private firm trying to get public information that they can then drive revenue from,” he said, later emphasizing to Government Technology his city's general support of the Sunshine Law.
“They want it so that you can provide them with a free mailing list,” said Ramona Huckstep, a policy and membership associate with the nonprofit Missouri Municipal League, which represents 650 of the state’s 940 cities, towns and villages, and offers guidance on issues including public records and information.
"It’s tough for little towns,” Huckstep told Government Technology. “Think about it. You live in a small town and somebody is in there every day asking you stuff. And your clerk can’t get the water bills out, can’t get the budget typed up, can’t get the next meeting ready because they’re constantly doing that."
Mark Neckerman, assistant IT director for the city of Columbia, confirmed that the city has had similar issues with companies requesting public information on customers of the city-owned utility Columbia Water and Light, then targeting customers with unwanted communications.
“The problem is someone who uses it like a weapon, or a lot of times they’re mad and irritated when they make the [public records act] request. When you come back to them to limit their search they don’t trust you,” he said.
Any individual trust issues aside, panelists had to give the audience some bad news: Public information is just that — public.
“And they can do it,” Reeves said in response to DePriest’s question.