The Missouri Court of Appeals, Western District recently confirmed the relationship between Chapter 610 RSMo., Missouri’s “Sunshine Law,” and Chapter 109 RSMo., Missouri’s record retention policy, and how the two bodies of statute intersect as it relates to public records. In Sansone v. Governor of Missouri, et al., WD84426 (Jun. 7, 2022), the Court considered whether the Governor’s office violated the Sunshine Law and record retention policy for allowing executive department employees to use a messaging application that automatically deleted messages sent and received through the application.
In the case, Sansone claimed the Governor’s office violated the Sunshine Law and Chapter 109 by using an ephemeral messaging application, Confide. Sansone submitted a Sunshine request to the Governor’s office, requesting records relating to messages sent and received using the Confide application, as well as information related to user accounts and dates and times messages were sent and received with the app. In the case, evidence was established that the application deleted all messages, from the phones where the message was both sent and received, automatically after a very short time, and therefore it was not possible for the public employees to retain Confide messages. The court focused on the definition of “public record” in the Sunshine Law, noting that the law only requires public governmental bodies provide access to public records actually in existence and in the agency's possession or under their control. There can be no “public record” if it is not retained by the public governmental body. Because the Governor’s office established that the requested messages did not exist and were not able to be retrieved there could be no violation of the Sunshine Law for failing to provide them. Chapter 109 RSMo., the court stated, specifies how long public records should be retained but provides no private right of action for citizens to seek enforcement. The court contemplated that Sansone may be able to seek injunctive relief under Chapter 109, however, made clear he failed to plead what enforcement he sought and found no violation of Chapter 109.
Importantly, the court noted that use of such ephemeral messaging applications by public governmental bodies does practically allow a body to side-step the purpose of the Sunshine Law but stated that updated legislation would be required to address the concerns that advanced cellular technology, like ephemeral messaging, presents.
Additionally, Sansone claimed the Governor’s office violated the Sunshine Law by claiming that the Governor’s personal cell phone number was a closed record under 610.021(14) (which allows for closure of records that are “protected from disclosure by law”) and citing 407.1500 RSMo. The court disagreed with the State’s reasoning for closure but found that the Governor’s personal cell phone number was a closed record under 610.021(13) as an “individually identifiable personnel record,” stating that Missouri recognizes a “right to privacy in personnel records that should not be lightly disregarded or dismissed.” Cities may want to speak with their attorneys and human resources staff to review how they are classifying and storing cell phone information.