Public Scrutiny of Missouri E-Mail Under the Sunshine Law
by Jean Maneke and Dan Curry1
In January 21, 1993, James Cade went to work without his necktie.2 Some Missouri lawyers might cheer Cade's dedication to casual dress, even if they don't share his sense of fashion. With his bare neck, he laid a foundation for a right of access to e-mails of public officials.
Cade worked for the Missouri Division of Family Services (DFS), where he began appearing open-collared, contrary to requests from his supervisor.3 For his recalcitrance, he received a four-day suspension. Cade, however, was a Bartleby with a lawyer.4 He filed a grievance alleging the necktie policy amounted to sex discrimination. During subsequent litigation, e-mails describing appropriate dress codes potentially received by Cade became part of the case's record. Those e-mails established that Cade had fair notice of the department's dress code.5
This legally notable use of e-mail was not a first for Missouri, but it surely illustrates the growing significance of electronic communication in cases in the state's courts. An e-mail that can provide notice in one court could also serve as a record or to prove an act or mindset in other contexts. As e-mails are collected and stored in public servers, they become public records and therefore susceptible to open records requests pursuant to Chapter 610, RSMo, the state's Sunshine Law.6 This logic tracks the published privacy policy of the administrative body that oversees DFS, the Missouri Department of Social Services. It states in pertinent part: "Email is not necessarily secure or confidential. . . . If an appropriate request is made to this office for information that is subject to disclosure by the Sunshine Law, the Department of Social Services may be required to disclose the information requested, even if it may include your personal information."7
Whether e-mail is actually subject to the Sunshine Law becomes a pertinent issue, given that the medium's use in the public sector is ubiquitous. Department heads, elected officeholders, and city employees now routinely do business electronically. A national Pew research poll showed that "88% of local elected officials" use e-mail in their public activities.8 Slightly less than a quarter of the public officials polled said e-mail was a primary means of communicating with the public.9 Of those public officials who had a public e-mail account, one-third said they used it exclusively for public affairs, while a third said they used it for public and private, and a final third said they relied on their personal e-mail account to conduct public business.10 According to a conservative estimate from Ken Withers, an expert on the discovery of electronic evidence in civil litigation, a 100-person business would generate 7,500,000 e-mail messages a year.11
This multiplication of electronic communication means the opportunity for open records abuse, whether intentional or unintentional, will rise.12 The question posed, then, is: To what extent are those e-mails open for inspection under the state's Sunshine Law? The answer hasn't been heard yet. The Sunshine Law makes no mention of e-mail, and no Missouri court has ruled directly on the subject. Yet e-mail's status in terms of discovery and the treatment of electronic records by Missouri courts indicate that Missouri is poised to adopt a policy that unlocks all e-mail, regardless of source or destination, stored on public computers.
I. Electronic Records Are Public Records
In Missouri, electronically stored information is indistinguishable from print-based information for the purposes of the Sunshine Law. Official interpretation of the law confirms this conclusion. In 1998, the Attorney General construed § 610.026.1(2), RSMo, so "that records may be maintained on other than paper."14 The opinion references the statute's language, which lists "computer facilities, recording tapes or discs, video tapes or films, pictures, slides, graphics, illustrations or similar audio or visual items or devices."15 Further, the Attorney General notes that a 1998 amendment to the law allowed for copies of the records to be in formats other than paper.16 The default status of information kept on computer systems is that of a public record.
Earlier case law supports the Attorney General's opinion. In a 1996 case, a Missouri appellate court stated that revised state statutes kept in ASCII format on computer tape were public records.17 The court also instructed that copies be provided in the ASCII format on computer tape.18 Crucially, the court said its "analysis is not affected by the fact that the public record at issue is on computer tape. Concerning public records, the legislature has recognized the increasingly important role of computers and electronic media."19
Outside of the Sunshine Law, the common law approach to public records suggests a broad category of documents can be considered public. Recently, the Pulitizer Publishing Company successfully sued to unseal court records related to compensation of a public official.20 The Court stated, "It is undisputed in this case that there is a common law right of public access to court and other public records."21 This common law right finds full articulation in Disabled Police Veterans Club v. Long, where the court ruled that "the term public records covers not only papers expressly required to be kept by a public officer but all written memorials made by a public officer within his authority where such writings constitute a convenient, appropriate or customary method of discharging the duties of the office."22 The common law definition of public record was limited by a required showing that "the purpose of inspection was to vindicate a private or public right."23
E-mail is presently a customary way of discharging the duties of office for many departments and municipalities, and so it would be made available for inspection under the common law.
II. E-Mail is an Electronic Record
It is difficult, or at least counterintuitive, to imagine a definition of "electronic record" that does not include e-mail.24 In Missouri, however, the status of e-mail as an electronic record has not yet been made explicit by the courts. E-mail has not been the central issue of any case, although the number of cases mentioning e-mail has accelerated in recent years, following the national trend.25
A broad Westlaw search of Missouri court decisions mentioning e-mail uncovered 16 cases, each dated after 1993. In most instances, the discussion of e-mail was incidental to the subject of the litigation.26 Nonetheless, the scattered discussion of electronic records among Missouri cases suggests that courts are permitting e-mail to be a target of discovery procedures under multiple contexts.
Cade and his refusal to wear a necktie are part of this movement. In addition to Cade's case, electronic records have played a crucial, if not central, role in several Missouri court decisions. For instance, in State ex rel. Stolfa v. Ely, the court ruled that a discovery request from the plaintiffs for 120 professional liability claims stored in a computer database was not overly burdensome.27 In Safeco Ins. Co. of America v. Wood, the earliest case in which the word "e-mail" appears, e-mail documents were produced during discovery and later used as evidence during the trial.28
In a criminal context, a Missouri appellate court, in Phillips v. American Motor Ins. Co., expressly refused to interpret § 542.418.1, RSMo, commonly known as the Missouri Wiretap Act, to exclude the use of e-mails as evidence.29 The court ruled that employing the Wiretap Act to block evidentiary use of e-mail and other electronic communications could produce "a major business dispute with absolutely no admissible evidence because all of the business communications involved some form of electronic or wire communications."30 This "would wreak havoc with some business litigation claims," the court continued.31
III. State Entities and E-mail Policies
If e-mail's status as an electronic record is at all ambiguous, Missouri state agencies and cities aren't waiting to find out. Most have taken proactive measures to educate the public on the status of electronic information and e-mail kept on their computers by publishing privacy policies warning people that e-mail sent to the agency or produced by the agency are records susceptible to Sunshine Law recall.32 These notices carry largely standardized content that warns, as the Department of Social Services does, that e-mail is neither secure nor confidential and that the writer should send only the information necessary for answering the posed question.33 This standardized warning explicitly references the Sunshine Law, stating that if an appropriate request is made under this law, then that information must be disclosed whether it includes personal information or not.34
At the municipal level, Missouri cities have also taken steps to notify the public and public officials of the Sunshine Law's applicability in cyberspace. The Kansas City privacy policy posted on the city's official web site states that requests for service made from the web site, which are accomplished through e-mail, become part of the public record.35 The City of Springfield's internal e-mail policy minces no words about the connection between e-mail and the Sunshine Law: "E-mail messages are not private; they are subject to discovery proceedings in legal actions and the provisions of the Missouri Sunshine Law. . . . E-mail records are assumed to be public information. This particularly is the case when exchanged between more than two elected officials."36 Electronic communication conducted with the public and among public officials is carried out in this state with the assumption - at least the published assumption - that it is activity covered by the Sunshine Law.
IV. National Trends Toward Construing E-Mail as a Public Record
Outside of Missouri, the trend is for states to establish legislatively or through policy that e-mail is an electronic record recoverable under open records laws. At the federal level, Armstrong v. Executive Office of President opened the e-mail of many public officials under the federal Freedom of Information Act.37 Many states have followed suit, either through court decisions or through policy. What follows is a list of approaches taken by states that have taken a position on e-mail as a public record.
In Kentucky, the governor's office, in a 1996 publication entitled "The Status of Electronic Mail as a Public Record," noted that: "Increasingly, public agencies use mail e-mail systems to distribute memos, circulate drafts, disseminate directives, transfer official documents, send external correspondence, and support various aspects of their operations. . . . [E]lectronic mail, created or maintained by public agencies, meets the statutory definition of a public record in Kentucky."38
In Alabama, the Government Records Division of the Alabama Department of Archives and History in 1996 published an article in its newsletter underscoring e-mail's existence as a public record "when it is created by a government employee in the course of conducting public business, and when it documents the activities and business of public officials" pursuant to section 36-12-2 of the Code of Alabama 1975.39
In Massachusetts, the state archives released a policy update to state supervisors of public records that states "[a]ll email created or received by an employee of a government unit is public record."40 The document defined email "as any message created and received on an electronic mail system. . . . The email message may be text or word processing documents, spreadsheets or other data compilations transmitted through such a system."41
In Oregon, the "Frequently Asked Questions" section of the state archives web site waffles somewhat. "Most of the time, e-mail is a public record," the site states. "If you have any doubts, you should assume it is a public record."42
The trend toward considering e-mail as a public record continues through attorney general findings, court holdings, and statutory amendments. In Colorado, e-mail is considered a public record under the Open Records Act.43 In 1997, state agencies adopted a policy on monitoring email communications that included a statement that email might be a public record and open to inspection under the Open Records Act.44 In Arizona, a court has ordered release of computer backup tapes of a public agency, including e-mail communications of employees.45 In Arkansas, e-mail falls under the state's Freedom of Information Act as a public record defined to include "electronic or computer-based information."46 An opinion from the attorney general in that state also indicates that electronically stored e-mail is public record.47 In Maryland, an attorney general's opinion stated that agency e-mail is a public record.48
V. Missouri is Not Florida
The state of Florida, which boasts a widely-lauded tradition of open government and open records, provides perhaps the richest judicial discussion of how e-mail might fall under the state's open records law. Yet in the recent decision in Times Publishing Co. v. City of Clearwater, the court denied a reporter's request for city e-mail messages exchanged between two employees.49 The Times argued that any e-mail message on a public server should be considered a public record. The court disagreed, stating that personal e-mails were not public records because they were not intended to further official government business, and that e-mail did not become a public record by virtue of being on a public server.50 This ruling came despite Florida's tradition and an attorney general's opinion stating that e-mail is equivalent to other public records under the state's Sunshine Law.51
Missouri courts would be expected not to follow Florida's lead, inasmuch as Missouri's definition of public record differs from the Florida definition substantially. The language of Florida's open records law requires any document or record to be made "in connection with the transaction of official business by any agency."52 Missouri's Sunshine Law, however, defines "public record" as "any record, whether written or electronically stored, retained by or of any public governmental body including any report, survey, memorandum . . ." but does not include a requirement that the document be made in connection with official business.53 Further, the law requires one to broadly interpret what constitutes a public record.54 With this latitude built into Missouri's code, the stage has been set for e-mail, and other electronic documents stored on public computers, to be public records.
Footnotes
1 Jean Maneke, of The Maneke Law Group, L.C., Kansas City, has served as counsel to the Missouri Press Association for more than 12 years. In that role, she has worked closely with the provisions contained in Chapter 610, including assisting in the drafting of many of the legislative changes to the statute in past years. She received her law degree from the University of Missouri-Kansas City in 1980 and her undergraduate degree from Southwest Missouri State University in 1976. Dan Curry is a UMKC law student and a reporter for and eastern Jackson County newspaper, The Examiner. He has a master's degree in journalism and an undergraduate degree from the University of Kansas.
2 Cade v. State, 990 S.W.2d 32 (Mo. App. W.D. 1999).
3 Id. at 34.
4 Herman Melville, Bartleby, the Scrivener, A Story of Wall Street, 2 Putnam's Monthly 546 (1853). Bartleby, a character in Bartleby the Scrivener, replied to repeated directives from his boss with the classic equivocation: "I would prefer not to."
5 Samuel A. Thumma & Darrel S. Jackson, The History of Electronic Mail in Litigation, 16 Santa Clara Computer & High Tech. L.J. 1 (2000).
6 Chapter 610, RSMo 2000, as amended. All references hereinafter to sections of Chapter 610 are to the Revised Statutes of Missouri, 2000, as amended, 2002.
7 Privacy Policy, Mo. Dept. of Soc. Servs., at http://www.dss.state.mo.us/privacy.htm.
8 Elena Larsen & Lee Rainie, Digital Town Hall: How Local Officials Use the Internet and the Civic Benefits They Cite From Dealing With Constituents Online (October 2, 2002), a Pew Internet & American Life Project, at http://www.pewinternet.org/reports/toc.asp?Report=74.
9 Id.
10 Id.
11 Kenneth J. Withers, Discovery of Electronic Evidence: What You Need to Know, at http://www.kenwithers.com (last visited Dec. 23, 2003).
12 Charles Davis, E-mail and Cookies: Electronic Tests of Open Records, FOI Columns (January-February, 2001) at http://www.ire.org/foi/janfeb2001.html (last visited Dec. 23, 2003). "E-mail, and the capability it offers public officials to communicate away from the public eye, is rapidly becoming an important freedom of information battle. Public officials around the country are slowly awakening to the fact that e-mail, interactive chat and other teleconferencing technologies provide them with the electronic equivalent of the old smoke-filled room."
13 On December 12, 2003, State Representative Jeff Harris pre-filed House Bill 870, which proposes to make certain changes to the provisions of Chapter 610, RSMo, including adding a provision to § 610.023 that messages related to the public business transmitted by electronic means to one or more members of the body such that a majority of the body's members are copied must also transmit the message to the custodian of records concurrently and that those messages are then public records. Among other provisions related to Internet chat and message boards, the bill also provides that if a request for records is submitted by e-mail, the public body may respond in the same format.
14 153-98 Op. Mo. Att'y Gen. (1998).
15 Id.
16 Id. (noting the modification of the word "photocopies" in the original law to the word "copies" in the amended version.)
17 Deaton v. Kidd, 932 S.W.2d 804, 807 (Mo. App. W.D. 1996).
18 Id.
19 Id. (citing § 610.029, RSMo, which "provides that 'a public governmental body is encouraged to make information available in useable electronic formats to the greatest extent feasible.'") See Pulitzer Publ'g Co. v. Missouri State Employees' Ret. Sys., 927 S.W.2d 477 (Mo. App. W.D. 1996) (making no distinction between written or computerized versions of state pension records that it orders disclosed). See generally Chapter 610.
20 In re Transit Casualty Co., 43 S.W.3d 293, 300 (Mo. banc 2001).
21 Id. at 300.
22 279 S.W.2d 220, 223 (Mo. App. E.D. 1955).
23 Hyde v. City of Columbia, 637 S.W.2d 251, 258-259 (Mo. App. W.D. 1982). This decision also notes that "(w)hatever vestige of a common law interest to enable inspection lingered in §§ 109.180 and 109.190 was swept away by the enactment of the Sunshine Law" (258). The Sunshine Law did away with the requirement to vindicate a private or public right, opening all records of any public governmental body for inspection or copying, subject to the enumerated restrictions of § 610.025, RSMo.
24 Armen Artinyan, Legal Impediments to Discovery and Destruction of E-mail, 2 J. Of Legal Advoc. & Prac. 95, 95 (2000) (defining e-mail as a record).
25 James A. Snyder & Angela Morelock, Electronic Data Discovery: Litigation Gold Mine or Nightmare?, 58 J. Mo. Bar 18, 24 (2002).
26 See, e.g., Reeves-Weible v. Reeves, 995 S.W.2d 50, 64 (Mo. App. W.D. 1999) (mentioning e-mail sent from mother to father in a custody dispute); Abernathy v. Meier, 45 S.W.3d 917, 925 (Mo. App. E.D. 2001) (holding that e-mail exchange between father and child, among other permitted interactions, was an appropriate custody arrangement).
27 875 S.W.2d 579 (Mo. App. W.D. 1994).
28 948 S.W.2d 182, 184 (Mo. App. E.D. 1997). See also Ozark Employment Specialists, Inc. v. Beeman, 80 S.W.3d 882, 894 (Mo. App. W.D. 2002) (concluding that e-mail exchanged between parties establishes defendant's knowledge of contract).
29 Phillips v. American Motorist Ins. Co., 996 S.W.2d 584, 591-592 (Mo. App W.D. 1999) (finding that the legislative intent of the Wiretap Law was to forbid use of evidence captured in an authorized wiretap in other civil proceedings, not to prevent the introduction of electronic evidence).
30 Id. at 591.
31 Id. at 591.
32 See e.g. Privacy Policy, Mo. Dep't of Labor & Indus. Relations, at http://www.dolir.state.mo.us/privacy.htm (last visited Dec. 23, 2003); Disclaimer/Privacy Policy, Mo. Dep't of Econ. Dev., at http://www.ded.state.mo.us/disclaimer.shtml (last visited Dec. 23, 2003); (MDHE) Online Privacy Policy, Mo. Dep't of Higher Educ., at http://www.cbhe.state.mo.us/mdheprivacy.htm (last visited Dec. 23, 2003).
33 The full quotation from the standard disclosure reads: "If you send us e-mail, the message will usually contain your return address. If you include personal information in your e-mail, we may use that information in responding to your request. E-mail is not necessarily secure or confidential. Send only the information that is necessary for us to answer your question or process your request." See http://www.dolir.state.mo.us/privacy.htm.
34 MoDOT Internet Privacy Policy, Mo. Dep't of Transp., at http://www.modot.state.mo.us/general/privacy.htm (last visited Dec. 23, 2003). The statement makes explicit reference to the Sunshine Law: "As a state governmental agency, the Missouri Department of Transportation is subject to Chapter 610 of the Revised Statutes of Missouri, commonly known as the Sunshine Law. If an appropriate request is made to this office for information that is subject to disclosure due to the Sunshine Law, the Missouri Department of Transportation may be required to disclose the information requested, even if it may include your personal information."
35 Web Site Privacy Policy, City of Kansas City, at http://www.kcmo.org (last visited on Dec. 23, 2003).
36 Springfield's E-mail System at http://www.mocities.com (on file with authors).
37 Armstrong v. Executive Office of President, 1 F.3d 1274, 1280 (D.C. Cir. 1993).
38 The Status of Electronic Mail as a Public Record, Governor's Office for Technology, Office of Policy and Customer Relations, at http://www.state.ky.us/kirm/emailpol.htm(last updated May 9, 1996).
39 Developing E-Mail Policy for Government Agencies, 1 Gov't Rec. News 3 at http://www.archives.state.al.us/ol_pubs/govrec13.html (last visited Dec. 30, 2003).
40 SPR Bulletin NO. 1-99 February 16, 1999 Revised and Reissued, Massachusetts Archives, at http://www.state.ma.us/sec/arc/arcrmu/rmubul/bul199.htm (May 21, 2003) (last visited Dec. 30, 2003).
41 Id.
42 E-mail FAQ (Frequently Asked Questions), Oregon State Archives, at http://arcweb.sos.stat/e.or.us/recmgmt/emailfaq.html (last visited Dec. 30, 2003).
43 Colo. Rev. Stat. § 24-72-202 (1997). Information leading to the following states' positions was provided by the Reporter's Committee for Freedom of the Press. An update of states' positions on e-mail as public records is available at the committee's website,
54 Section 610.011.1, RSMo 2000, "It is the public policy of this state that meetings, records, votes, actions, and deliberations of public governmental bodies be open to the public unless otherwise provided by law. Sections 610.010 to 610.028 shall be liberally construed and their exceptions strictly construed to promote this public policy."