Missouri Court Rejects Claim Against City For "Lost" Documents
In a departure from other court decisions pertaining to electronic public records, the Missouri Court of Appeals declined to sanction city government officials for failing to produce certain email messages requested by a citizens group.
In Concerned Citizens for Crystal City v. City of Crystal City, ---S.W.3d---, 2010 WL 4195827 (Mo. App. E.D.), the Concerned Citizens for Crystal City (“CCCC”) opposed the City’s approval of a redevelopment plan that would turn an abandoned glass factory into an iron smelter. During a protracted discovery battle, CCCC pointed to several instances of discovery violations that it alleged were prejudicial. The group was particularly incensed by the Mayor’s and the City Clerk’s failure to produce certain emails. The Court of Appeals affirmed the trial court’s decision to deny CCCC’s request for sanctions against the City, noting that “the emails at issue were few in number.” The Court acknowledged that the documents had not been retained either electronically or in hard copy. The Court accepted the City’s explanation of the missing emails: “[T]hey cannot find them, they do not have them, and nothing was done intentionally, or in an effort to hide them.”
This decision can be contrasted with O’Neill v. City of Shoreline, ---Wn.2d---, ---P.3d---, 2010 WL 3911347, a recent case decided by the Washington Supreme Court. In O’Neill, the Court found that metadata can be a public record and is subject to disclosure under Washington’s Public Records Act. The O’Neill decision essentially requires that emails and other electronic documents need to be preserved in their original electronic forms, as paper copies will no longer be sufficient. Even if only a small number of records is at issue (a single email was central to the O’Neill case), proper preservation is essential. The Missouri Court of Appeals appears to condone a “best efforts” approach to preservation of electronic records, while the Washington Supreme Court has imposed strict penalties and even proposed searching the hard drive of a government official’s personal computer to locate and obtain an electronic public record in its native form.
