Public Records Laws and Social Media Retention in
Missouri

(5) “Record”, document, book, paper, photograph, map, sound recording or other material, regardless of physical form or characteristics, made or received pursuant to law or in connection with the transaction of official business.

Sunshine Law: Top 10 Things to Know

1. When in doubt, a meeting or record of a public body should be opened to the public.
2. The Sunshine Law applies to all records, regardless of what form they are kept in, and to all meetings, regardless of the manner in which they are held.
3. The Sunshine Law allows a public body to close meetings and records to the public in some limited circumstances, but it almost never requires a public body to do so.
4. A public body generally must give at least 24 hours’ public notice before holding a meeting. If the meeting will be closed to the public, the notice must state the specific provision of the law that allows the meeting to be closed.
5. Each public body must have a written Sunshine Law policy and a custodian of records whose name is available to the public upon request.
6. The Sunshine Law requires a custodian of records to respond to a records request as soon as possible but no later than three business days after the custodian receives it.
7. The Sunshine Law deals with whether a public body’s records must be open to the public, but it generally does not state what records the body must keep or for how long. A body cannot, however, avoid a records request by destroying records after it receives a request for those records.
8. The Sunshine Law requires a public body to grant access to open records it already has, but it does not require a public body to create new records in response to a request for information.
9. When responding to a request for copies of its records, the Sunshine Law limits how much a public body can charge for copying and research costs.
10. There are special laws and rules that govern access to law enforcement and judicial records.

Records Retention and Sunshine Requests

Agencies should not rely on social media sites to retain their documents, as that responsibility lies with the agency. Posts, comments, polls, photographs, and other content may be considered records. Agencies should identify staff responsible for ensuring these records are exported from the social media site or captured in some other way.

Content on social media sites is also subject to 610 RSMo., more commonly known as the Sunshine Law. Government records on a non-government-owned server are subject to a Sunshine request and legal discovery. Social media companies, however, are not obligated to respond to agency requests – only to what is agreed upon in the Terms of Use or Terms of Service. For this reason, it is important to monitor social media activity and capture all records.

Retention periods for records can vary from one day to permanent/transfer to the Missouri State Archives. The retention time will depend on the content of the record. If an agency is unsure how long a record needs to be retained, state agencies should refer to the Missouri General Retention Schedule, their Agency Records Disposition Schedule, or contact the Division of Records Management. Local agencies should refer to their Records Retention Schedules or contact the Local Records Division. Some social media sites allow users to export their information, while others require using third-party tools. Maintaining the records resides with the agency, not the social media company.

If the site shuts down, crashes, or the vendor arbitrarily changes the Terms of Use; those potential records could be at risk, and without adequate preparation, there is nothing the agency can do to protect itself. Agencies must have a plan and process in place for how records will be saved.

Excerpt from City of Kansas, City, MO Social Media Policy approved by the City Manager

a. City of Kansas, City, Mo., social media sites are subject to State of Missouri public records laws as well as state retention law and relevant City of Kansas City, Mo., records retention policy.

b. Departments that create social media sites are responsible for the maintenance of the site and associated records and shall respond completely and accurately to public records requests for public records associated with their social media site and activity. (See Code of Ordinances section 2-115 for specific information regarding open meetings and records).