After actions by Greitens, lawmakers take up bills to bolster open records laws

Gov. Eric Greitens was barely mentioned Monday afternoon during a hearing on two bills aimed at strengthening the state’s open records laws.

But his actions over the course of his first year in office inspired the debate in the first place.

The House General Laws Committee heard testimony Monday on two bills that would increase penalties for violating the state’s Sunshine Law and record retention law. The bills also would create an office of transparency within the attorney general’s office, and give that office subpoena power.

“Giving the attorney general stronger remedies to enforce open-records laws is both commonsense and necessary,” said state Rep. David Gregory, a St. Louis County Republican co-sponsoring the legislation. “Government must be transparent to earn the trust of its people.”

Lawmakers insisted Monday that these changes are not targeting the governor.

But it wasn’t until Attorney General Josh Hawley’s probe into use by Greitens and his staff of a self-destructing text message app called Confide that the proposals emerged.

Hawley’s investigation sought to determine whether Greitens and his staff illegally destroyed public records by using Confide, which erases text messages after they are read and prevents someone from saving, forwarding, printing or taking a screenshot of texts.

The attorney general’s office doesn’t have subpoena power in Sunshine Law investigations, so the inquiry relied almost entirely on interviews with Greitens’ staff.

Hawley's office concluded its investigation last month with a report stating that there was no evidence of wrongdoing, in part because there was no evidence.

“If the legislature is willing to give us (subpoena) authority, we will reopen the Confide investigation,” Hawley told reporters last week.

Secrecy in the governor’s office

Greitens’ attempt to shroud the inner workings of his office in secrecy began even before he took the oath of office, when members of his transition team were asked to sign gag orders banning them from discussing their work publicly.

That penchant for obfuscation continued throughout his first year in office, culminating in December when The Star reported that the governor and most of his senior staff used the Confide app.

Of the 31 people who currently work in the governor’s office, 13 had Confide accounts, including Greitens.

The revelation alarmed government transparency advocates, who feared the app could be used to circumvent Missouri’s open records laws.

Shortly after The Star’s report, Hawley launched an investigation to determine whether Greitens and his staff illegally destroyed public records by using Confide. He said at the time that text messages sent or received by state employees about state business should be subject to the same rules as emails under the state’s Sunshine Law.

When the investigation concluded with a determination that there was no evidence of wrongdoing, Greitens celebrated the findings as vindication. But Hawley has acknowledged the investigation was hamstrung from the beginning.

“My office must have the necessary tools to ensure that those who attempt to thwart records-retention and Sunshine policies can be thoroughly investigated,” Hawley said.

One thing the attorney general investigation did determine was that Confide wasn’t the only app Greitens and his staff used to send text messages. They also use Signal, which allows for encrypted calls and texts and has a feature that allows for texts to be automatically erased from all devices after a timer has elapsed.

Greitens' staffers told the attorney general’s office that they used Signal at the recommendation of the Department of Public Safety. The governor’s office considers all materials related to this app to be closed.

Beyond Confide and Signal, the Greitens administration also used an app called Quip. Similar to how Google's web-based office programs work, Quip allows for the creation and editing of documents and spreadsheets within a group.

It also allows members of the group to exchange chat messages.

Jimmy Soni, former communications adviser in the governor’s office, instructed communications staff in each executive branch agency to use Quip to collaborate. He left the governor’s office last May, but he continues to be paid by Greitens’ campaign.

The Star filed identical requests under Missouri’s Sunshine Law to four executive branch agencies for messages sent and received by government employees using Quip — the governor’s office, the office of administration, the department of transportation and the department of social services.

Only the governor’s office declined to turn over messages, telling The Star in a letter that “the office of governor does not maintain, nor does it have access to, records that are responsive to your request," and that the office "does not have access or control over any record related to Quip" by Soni.

The three other agencies agreed to turn over messages, including some that involved Soni. Most of the messages focused on media inquiries and possible responses.

Use of these self-destructing messaging apps has now become part of the criminal prosecution of Greitens in St. Louis, where he faces a felony charge of invasion of privacy stemming from a 2015 extramarital affair.

The governor is accused of photographing a woman in 2015 while she was blindfolded and partly nude in an effort to keep her from talking about their affair, and transmitting the photograph “in a manner that allowed access to that image via a computer.”

Last week, the St. Louis prosecutor’s office alleged Greitens used Confide, Signal or similar apps “to engage in criminal behavior” as alleged in the felony indictment.

Greitens’ support?

The bills heard by the House committee Monday would increase the penalties for violating the state’s record retention laws and open records laws, allowing for potential fines of up to $10,000. Deliberately charging unreasonable fees for public records would become a Class B misdemeanor, with penalties of up to six months in jail.

The bills also would create an office of transparency within the attorney general’s office, which could provide guidance to government agencies on complying with the Sunshine Law and would have subpoena power to help enforce the law’s requirements.

The House general laws committee is expected to approve the bills Tuesday night.

Rep. Jean Evans, a St. Louis County Republican who is co-sponsoring the legislation, said she has spoken with the governor’s liaison to the House and was told he supports the bills debated Monday strengthening the Sunshine Law.

She insisted that the governor and his use of Confide didn’t inspire the legislation.

“The timing is sort of coincidental,” she said, “but it probably drew more interest to the bill.”

Greitens’ spokesman didn’t respond to a request for comment.

Democrats have also filed bills proposing changes to the Sunshine Law. One would bar legislators and government employees from using apps designed to send encrypted messages that automatically self-destruct to conduct public business. Another would change the definition of public record to include social media pages, and it would attempt to clarify that e-mails, texts and social media private messages are public record under certain circumstances.

Neither bill has received a public hearing.

This story was originally published March 26, 2018 at 3:28 PM with the headline "After actions by Greitens, lawmakers take up bills to bolster open records laws."