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.

The advice sheet provides five (5) factors for agencies to consider when managing the retention of public records created or received through social networking sites. These factors include determining whether the posts are public records (yes, if the posts are made or received in connection with the transaction of the agency’s public business). Determining whether the posts are simply copies of records that the agency is already retaining or whether the posts are primary records. Determining how long the posts will be retained and how the agency will retain the posts (especially if the posts are maintained by a third-party vendor). Finally, determining which business activities are appropriate for social networking, particularly if the agency is unable to manage the creation, receipt, and retention of the posts as public records.