November 01, 2007


Governor Matt Blunt's office policy of deleting emails has become a hot issue. While most of the coverage has centered on an attorney who claims he was fired for pointing out this policy was a violation of the law, Blunt and other public officials continue to delete emails discussing public business. The law is clear that any material, regardless of physical form or characteristics, made or received pursuant to law or in the transaction of official business is a public record. (Section 109.210) This would include emails but just to make sure the definition of public records found under the Sunshine Law (610.010) states "whether written or electronically stored." So what is the legal basis Blunt will use to defend this policy? Blunt shed more light on his (mis)understanding of the law today.

In a news conference in St. Louis Blunt indicated his office policy is to follow the Sunshine Law and that the Sunshine Law says what is and isn't a public record. Specifically, Blunt said his office follows the Sunshine law in regard to retaining emails and that emails can be public records such as when they are translated into written documents. In the past Blunt has claimed that if an email is requested and it exists then it is a public record.

I have not seen anyone from the Blunt team provide any legal support for their policy, however, Rich Chrismer, a spokesmen for Blunt, did indicate "there is no statute or case that requires the state to retain individual emails as a public record." Chrismer is clearly wrong and evidences, along with Blunt's statements above, their misinterpretation of the law.

Section 109 of the Missouri Statutes, not Section 610 (the Sunshine law), governs the retention and destruction of public records. Emails dealing with public business are public records under the definition provided by Section 109, and, therefore, they are subject to the provisions of Section 109.

The Sunshine law (Section 610) does not govern retention or destruction of public records but instead Sunshine laws are intended to provide a method to open up these public records and meetings to the citizens. There is absolutely nothing in the Sunshine law that allows public officials to delete emails. Section 610.025 of the Sunshine law does address the issue of when a public official must forward emails relating to public business to a public computer and provides:

Electronic transmission of messages relating to public business, requirements.
Any member of a public governmental body who transmits any message relating to public business by electronic means shall also concurrently transmit that message to either the member's public office computer or the custodian of records in the same format. The provisions of this section shall only apply to messages sent to two or more members of that body so that, when counting the sender, a majority of the body's members are copied. Any such message received by the custodian or at the member's office computer shall be a public record subject to the exceptions of section 610.021.

Apparently this statute is what Blunt's office relies on in support of the policy of deleting public records. Of course, Section 610.025 does not say anything at all about destroying public records but instead provides for the retention of public emails sent outside of a public computer. In fact, to paraphrase Rich Chrismer "there is no statute or case that allows the state to delete emails discussing public business." Not only is it a violation of the law to destroy public records under Section 109 but it is also criminal to do so intentionally.

How ironic that the Sunshine laws passed to make the government more open are being used by Blunt's administration to justify the destruction of public records. Why do we allow this?

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