Officials’ secret text messages are public records, and we should be allowed to see them
Missouri Attorney General Josh Hawley is certain: Text messages written by public officials, concerning public business, are open records under state law.
“Text messages should be treated like, and subject to, the same analysis as emails,” Hawley said Monday. That’s true, he said, whether the messages are sent on a state-owned phone or on a private device.
The attorney general is right. Under Missouri law, electronic communications must be made public upon request unless they fall under a small group of specific exemptions, which include legal advice and real estate negotiations.
Yet there is confusion on the issue, in part because the words “text message” never actually appear in the Sunshine Law. Most of the statute was written before text messaging became common.
Hawley admitted as much. The Sunshine Law “was written decades and decades ago and has not been updated to take into account modern technology,” he told reporters.
The misunderstanding strongly suggests the Sunshine Law needs a 21st-century update, a task state legislators should undertake as soon as they begin the 2018 session in Jefferson City.
Lawmakers may want to extend their review beyond text messages alone. The state provides guidance for the use of social media (“using a personal account does not nullify state records law,” it says) but that guidance should be made part of the Sunshine Law itself.
As legislators address these issues, they should keep an important principle in mind: The public’s business must be done in public.
That idea may have been lost on Gov. Eric Greitens, his staff and his allies. As The Star first reported, they’ve installed a special application on their phones that erases encrypted text messages after they’ve been read. The app prevents saving, forwarding, printing or taking a screen shot of the text.
The app, called Confide, makes it impossible to determine if the governor and his allies have conducted state business by text message. The process flies in the face of the letter and spirit of the Sunshine Law.
The use of Confide and similar applications by public officials should be prohibited by law. The governor and his staff could still communicate privately by talking with one another, either in person or over the phone; once public business is put in writing, though, it should be subject to disclosure.
While they’re at it, Missouri legislators may want to examine another loophole in the law, which apparently prohibits the attorney general from pursuing alleged Sunshine Law violations by a state officer or agency while defending that officer or agency in a separate matter.
Preventing such a conflict is an important rule, but one easily addressed. Whenever such a conflict exists, the appointment of an outside investigator should be automatic.
This is not a partisan issue. The Missouri auditor, a Democrat, has recently been entangled in an electronic communications and text message dispute with a conservative group. Everyone could use more clarity in the rules surrounding public access to electronic messages.
The Sunshine Law should be brought up to date next year.
This story was originally published December 12, 2017 at 2:59 PM with the headline "Officials’ secret text messages are public records, and we should be allowed to see them."