Former Gov. Eric Greitens and his staff didn’t break the law when they sent and received self-destructing text messages, the Missouri Court of Appeals ruled Tuesday in a defeat for government transparency advocates.
The decision may not be the final word on the long-running fight over Greitens’ use of the app Confide if it’s appealed to the Missouri Supreme Court.
But it is a setback for supporters of more open government.
The lawsuit, along with a separate challenge involving emails sent by staffers of then-Missouri Attorney General Josh Hawley, holds the potential to significantly weaken the Missouri Sunshine Law’s reach over the communications of public officials — and by extension the ability of Missourians to access them.
Transparency advocates have fought for years to make Missouri state government more responsive to the Sunshine Law, including through the 2018 passage of the Clean Missouri initiative, which made legislative records subject to disclosure.
In theory, the Sunshine Law is supposed to make public records readily accessible. In practice, requests can sometimes linger for months and large fees can sometimes discourage requesters of records.
The twin lawsuits represent a major front in the battle over access to public records, with courts deciding whether government officials can shield their communications by quickly destroying them or conducting them over private email.
“Transparency and accountability are the bedrock of a self-governing society,” said David Roland, co-founder of the libertarian nonprofit Freedom Center of Missouri. “And if our laws, as currently written, are not providing a mechanism for citizens to enforce that transparency and accountability, then that is a problem that we need to address.”
The Star first revealed in late 2017 that Greitens and his senior staff were using Confide, an app that automatically deletes a text message after it has been read. Greitens resigned in 2018 amid allegations of sexual assault and blackmail. He is now attempting a political comeback with a campaign for U.S. Senate.
Nearly every member of Greitens’ staff — along with Greitens — had a Confide account. Greitens has admitted he used Confide to communicate with aides, but has denied he or his office violated any laws.
Mark Pedroli, a St. Louis County attorney and transparency advocate, sued over Greitens’ use of Confide on behalf of Ben Sansone, another St. Louis County attorney. The lawsuit has been making its way through Missouri’s court system since then.
The Court of Appeals decision, written by Judge Lisa White Hardwick, on Tuesday reaffirmed an earlier decision by a district court judge who found that the Confide messages weren’t retained on a device or server where they could be accessed.
“Adoption of Sansone’s argument would lead to the absurd result that public governmental bodies would have to provide access to records that they do not hold or maintain, either in their keeping or someone else’s,” the decision says.
In a footnote, Hardwick wrote that the court’s decision should not be read as condoning the use of Confide and similar apps by government officials but that it couldn’t create law. Hardwick wrote it may be time to update the Missouri Sunshine Law.
“It is not lost on this court that a public official’s use of the Confide application has the practical effect of side-stepping the reach of Missouri’s Sunshine Law via ephemeral messaging applications that delete communications before any request for their disclosure can be made,” the footnote reads.
In response to the Court of Appeals ruling, Pedroli said that if necessary, “we’re going to offer the Supreme Court an opportunity to weigh in on this, a matter of significant public interest.”
Greitens’ campaign didn’t immediately respond to a request for comment.
Court weighing private email use
The Confide decision comes after the Court of Appeals last month heard arguments in a lawsuit over the use of private email by the Missouri Attorney General’s Office.
In 2019, The Star reported that the office, then under Hawley’s leadership, in response to a Sunshine request from Democrats, had withheld emails between staff and consultants during his 2018 campaign for U.S. Senate.
The Democratic Senatorial Campaign Committee later sued the Attorney General’s Office, arguing that Hawley’s office had used private email accounts to flout the state’s Sunshine Law. It asked the court to impose civil penalties against the office.
During last month’s oral arguments, the office, now led by Attorney General Eric Schmitt, argued the emails should not be considered public records because they were on private accounts and weren’t stored on government computers.
“The plain language of the Sunshine Law and court of appeals decisions interpreting it impose a records-production obligation on a public governmental body only on records that the body actually retains,” a brief filed by Schmitt’s office said.
If the courts side with Schmitt, it would have far-reaching impacts on Missouri’s open record laws, transparency advocates say.
“It’s a nonsensical argument that essentially would give an incentive to local governments that want to hide what they are doing from the public — to give them the incentive to start using Yahoo emails, Hotmail or whatever else they want to use,” said Elad Gross, a St. Louis civil rights and transparency attorney who unsuccessfully ran for attorney general in 2020.
“And by virtue of them doing so, now not having to make any of those records available to the public.”
The Hawley case illustrates what some transparency advocates view as a loophole in Missouri’s open record laws. By arguing the records weren’t retained or stored on government computers, state agencies can essentially bypass public record requirements outlined in the Sunshine Law.
“If we’re talking about retention, and whether that was retained or not, then the government is off the hook unless a prosecutor wants to go after them,” Gross said. “That’s why they’re talking about retention so much because if they’re in that world, in that realm, then the government can essentially do whatever it wants.”
The retention argument creates a problem for citizens who want to understand the public business that elected officials are doing on their behalf. Advocates argue the state’s Sunshine Law, signed in 1973, needs to be amended to keep up with updated technology like cell phones and instant messaging applications.
“We need legislators to create this fix,” said Roland.
Proposed Sunshine Law changes
However, there appears to be little appetite among Republican legislators to increase the scope of the state’s open record laws. The only real push to change the Sunshine Law has been to exclude certain documents and communications from public view.
Gov. Mike Parson, in a presentation to his cabinet prior to the 2022 legislative session, listed among his top priorities a proposal that would have allowed government agencies to charge citizens fees for time spent reviewing records requested by the public. The change would have reversed a 2021 Missouri Supreme Court ruling that citizens could not be charged for attorney review time under the Sunshine Law.
Parson’s office did not not respond to two requests for comment for this story over two days.
Legislation proposed this year by Sen. Andrew Koenig, a St. Louis Republican, would have made documents and communications that do not have “substantial administrative or operational value” exempt from public view. It also would have imposed limits on what constitutes a public meeting and increased the amount of time government agencies are required to respond to requests.
Koenig said he proposed the legislation after hearing from city government officials who were concerned about the public release of constituent email addresses through records requests. The law is overbroad and should be tweaked, he said.
“I think when a lot of people email us, they aren’t thinking that their email address is going to be made public. I think that might go a little bit too far,” Koenig said.
“Maybe there’s places it needs to go further. I’m not sure,” he said. “But, you know, definitely in those instances…I thought maybe the Sunshine Law went too far.”
Still, when asked about the ongoing lawsuits related to the Sunshine Law, Koenig said he did not want officials to be able to bypass open records laws by the use of private emails. “That’s not in the best interest of the public, for sure,” he said.
With a lack of interest on the legislative side, some advocates say amendments to the Sunshine Law that would include updated technology and retention requirements need to come from the courts.
“I think we just need a ruling and it’s likely going to have to go to the Missouri Supreme Court at this point, just kind of given the conflicting stuff that’s been going on so far,” said Gross. “Overall, I think that we need a ton of changes to the Sunshine Law.”
This story was originally published June 7, 2022 1:31 PM.