Missouri Attorney General Josh Hawley on Monday announced three proposals to strengthen the state’s open-records laws that he hopes legislators will pass in the coming months.
Hawley, a Republican running for U.S. Senate, is asking lawmakers to create a transparency division in the attorney general’s office; to grant the attorney general’s office subpoena power in open-records investigations; and to create penalties for violating the state’s record retention laws.
He announced the proposals alongside representatives of the Missouri Press Association.
“The people of Missouri deserve an open, honest and transparent government,” Hawley said. “Open-records laws ensure that Missourians and the press can hold government accountable. It is time to update these laws so that they stay current with our ever-changing needs and technology in our modern world.”
The attorney general’s office is authorized to pursue enforcement of the Missouri Sunshine Law. But Hawley began raising concerns regarding his office’s power to do that after he was was asked by several lawmakers to investigate the use of a secret-texting app by Gov. Eric Greitens and his senior staff.
Hawley initially said his office could not conduct an investigation of the governor because it had to represent the governor’s office in other, unrelated litigation.
He later reversed that policy, formally launching an investigation to determine whether Greitens and his staff illegally destroyed public records by using Confide, an app that erases messages after they are read and also prevents someone from saving, forwarding, printing or taking a screenshot of texts.
Use of the app raised concerns among transparency advocates who worried it could be used to subvert Missouri open-records law. Because the app is designed to eliminate a paper trail, it is impossible to determine whether the governor and his staff are using it to conduct state business out of the public’s view or whether they’re using it for personal and campaign purposes.
Speaking to reporters Monday afternoon, Hawley noted that his office can’t subpoena documents in its Sunshine Law investigation. It must rely on the cooperation of those being investigated.
He declined to comment on the progress of the investigation of the governor on Monday, but his office has previously suggested that Greitens isn’t fully cooperating with the inquiry.
Greitens was asked Monday evening if he and his staff still use the Confide app. He did not answer, instead saying “we are cooperating fully with the attorney general’s inquiry.”
Creation of a transparency division, Hawley said, will ensure that questions about conflict of interest won’t interfere with enforcement of the Sunshine Law. And enumerating penalties for violation of record retention law will help ensure enforcement.
Hawley said many improvements could be made to the Sunshine Law to get it in line with modern technology. But discussion of a large-scale review of the law shouldn’t stand in the way of his proposals aimed at improving enforcement of the existing law, he said.
Meanwhile, two St. Louis attorneys hope that a Cole County judge will order Greitens and his staff to stop using Confide next week.
Ben Sansone and Mark Pedroli, co-founders of a group called the Sunshine Project, sued Greitens earlier this month alleging that he and his staff engaged in an ongoing conspiracy to violate Missouri’s open-records laws by using the Confide app.
Pedroli said he’s hopeful the judge will issue a temporary injunction at a hearing next Tuesday.
“I’ll be asking the judge to issue an order that the defendants not to use the Confide app or destroy any communications,” he said, “and for custodian of records in the governor’s office to preserve all communications by texts.”
As for the attorney general’s proposed changes to the Sunshine Law, Pedroli said Hawley should focus on “on creating incentives for average Missourians who want to hold the government responsible for ignoring the Sunshine Law.
“If an average citizens goes to court and the court finds that the government violated the Sunshine law, the government should have to pay for that citizens reasonable attorney fees,” he said. “In most cases today, if government losses, they don’t have to pay to make the winning Missourian whole. As a result, not many average Missourians can sue.”