Missouri Attorney General Josh Hawley is launching another Sunshine Law investigation into fellow Republican Gov. Eric Greitens, this one centered on the governor’s use of social media.
Hawley’s office had previously agreed with Greitens that his social media accounts were private, telling the Star in February that it would not require Greitens to turn over private messages, names of users who were blocked or emails used to create his social accounts.
But newly revealed emails cast doubt on whether Greitens can withhold such information from the public.
Hawley’s office said it would begin the new investigation after The Star asked about emails that appear to show a state employee helping craft a Facebook post for the governor at a time when Greitens had only one Facebook page, which he had used for his campaign.
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“At the time the (attorney general’s office) first looked at these accounts, there was no evidence that official resources were being used to conduct political business,” Hawley’s press secretary Mary Compton said in an email. “In light of the new evidence that you have provided, we are reviewing this matter carefully.”
The emails were obtained more than a year ago by St. Louis Public Radio but had not come to the attention of the attorney general’s office until The Star asked about them last week.
This is the second time the attorney general’s office has launched a Sunshine Law inquiry into the governor’s office. In December, it began to investigate Greitens’ use of a self-destructing text messaging app called Confide, ultimately concluding that there was no evidence of wrongdoing — in part because the app ensured there was no evidence.
Another investigation by the attorney general’s office led to a felony charge against Greitens in St. Louis. Hawley said his team found evidence that Greitens had used a donor list from a charity for veterans that he founded to raise money for his 2016 campaign.
Parker Briden, the governor's press secretary, responded to questions from The Star by pointing to the attorney general's previous public statements that said Greitens' social media accounts are not subject to the Sunshine Law.
Briden also noted that the federal Department of Justice has argued that President Donald Trump's social media activity is not subject to federal open records or records retention laws.
"This issue is settled," Briden said.
He declined to directly address the attorney general’s new inquiry and questions about his involvement with the governor’s social media accounts.
State Rep. Mark Ellebracht, D-Liberty, said state employees’ involvement with campaign accounts is “wholly inappropriate.”
“If they're using government employees to create content for the site, and they're pushing out official messages from the office of the governor of the state of Missouri, then it should be subject to the Sunshine Laws,” he said.
Ellebracht is sponsoring a bill that would update Missouri’s Sunshine Law to address the retention of electronic records and also deem an agency or official’s personal social media pages as public records.
State vs. campaign
In an effort to gauge Greitens’ support for a professional soccer stadium in St. Louis, St. Louis Public Radio filed a records request in early 2017 and received an email Briden had written.
In the email, Briden shared a draft of a social media post in which the governor boasted about the deal secured for the stadium.
The draft was initially sent Jan. 19, 2017 — 10 days after Greitens’ inauguration — and was forwarded a week later to members of the governor’s taxpayer-funded staff, including chief of staff Mike Roche, policy director Will Scharf and then-communications adviser Jimmy Soni.
Also copied on the email were two people connected to Greitens’ campaign who are not public employees: Austin Chambers, Greitens’ senior adviser who runs the dark money nonprofit A New Missouri Inc., and Mark Bobak, a St. Louis lawyer and a longtime friend of Greitens who served on the governor’s campaign leadership team.
When Briden shared his draft of the social media post, Greitens had one set of Facebook, Twitter and Instagram accounts with the handle @EricGreitens that he had started during his campaign and continued using after he became governor.
It wasn’t until September — nine months after Greitens assumed office — that the governor’s office created “official” accounts and a social media moderation policy in response to a media records request seeking the number of users blocked by the accounts, a history of direct messages and information related to the accounts’ creation.
After creating the new accounts, the governor’s office argued that the original Facebook, Twitter and Instagram were not “official” state accounts, and thus not subject to the Sunshine Law.
But the Missouri secretary of state’s records retention guidelines stipulate that social media sites are subject to the state’s Sunshine Law.
“It is strongly recommended that agencies advise their personnel to not use their personal accounts to conduct state or local business,” the guidelines say. “Using a personal account does not nullify state records law.”
When an identical records request was sent to members of the state’s executive branch, many quickly responded with the information, providing emails used to create the accounts and histories of direct messages.
Of the executive branch officials, only Greitens holds regular Facebook Live town halls in his Capitol office encouraging constituents to ask questions through his "private" account. Missourians have shared that they have been blocked from the governor's "private" accounts, preventing them from contributing questions. While there is no case law in Missouri, a federal court ruled that when an elected official in Virginia blocked a constituent, the constituent's First Amendment rights were violated.
Secretary of State Jay Ashcroft’s office said no one has been blocked by his accounts and no direct messages have been received or sent from them. The office also noted which accounts belonged to Ashcroft’s campaign committee.
Treasurer Eric Schmitt’s office said it does not have records related to Schmitt’s personal accounts because they “are not used to transact public business, and, therefore, are not subject to the State Records Law or Missouri’s Sunshine Law.” The office also said it inherited the current official Facebook and Twitter accounts it uses from the previous administration.
“Several users had been blocked from one or both pages by a prior administration,” wrote Jonathan Hensley, the office’s custodian of records and general counsel. “These users were unblocked in 2017, when the current administration became aware of the blocked accounts.”
Hawley’s office said the @HawleyMo accounts are his personal accounts. The office provided an email used to create its @AGHawley accounts, noted that no users have been blocked and provided direct messages showing Hawley’s office asking for contact information from a user for their help with the office’s human trafficking initiatives.
Auditor Nicole Galloway’s office said it does not have access to Galloway’s personal or campaign social media accounts. It also said records indicate no users have been blocked on the office’s official social media, and it provided a record of direct messages received and sent by the office’s Twitter account.
Advertising on Facebook
The line between state and campaign has been blurred further on the governor’s social media through the purchase of ads.
On Nov. 28, Greitens sat behind his desk at the Capitol to take questions from constituents during a Facebook Live town hall.
Ten days later, Facebook users flagged as belonging to the group “US Politics (very conservative)” and who were known by Facebook as “people ages 18 or older who live in Missouri” began to see an advertisement in their newsfeeds asking them to complete a survey.
If users clicked the link in the ad, it would take them to a page on Greitens’ campaign website, where they could note which issues are important to them and donate to his campaign.
Both interactions — one seems official, the other political — take place on the same Facebook page, which Greitens’ office has long maintained is not subject to the Sunshine Law.
Since at least October 2017, Greitens’ campaign has paid to sponsor or “boost” posts on Facebook. When a page “boosts” a post, it allows the user to turn the post into an advertisement and target which groups of users it will go to.
Greitens has paid for advertisements through the “unofficial” Facebook page to solicit campaign donations and, more recently, to share news articles bashing St. Louis Circuit Attorney Kim Gardner, who is currently charging Greitens with two unrelated felonies.
The “About” section of the @EricGreitens Facebook page notes, “Advertising paid for by Greitens for Missouri, Jeff Stuerman, Treasurer.”
“It's literally like we've turned the governor's office over to a bunch of high school kids who get a kick out of running political ads and giggling behind closed doors,” Ellebracht said.
With the rise of electronic devices and social media, it’s never been easier for elected officials to mask their communications, said Alex Howard, deputy director of the nonprofit organization the Sunlight Foundation, which advocates for open government.
“You've got public officials using modern messaging systems that are ephemeral or encrypted that don't have archiving built-in, which certainly creates, at minimum, the appearance that they're trying to avoid public records laws so those messages wouldn't be responsive,” Howard said.
David Keating, president of the nonprofit Institute for Free Speech, which advocates for the rights of political speech and less regulation of campaign finance, said that if a campaign account is repeatedly used as the first platform to announce government business — as Trump’s often is — and is primarily managed by a government employee, then the nature of the “unofficial” account has changed.
“If there's basically a state employee who just winds up managing the unofficial account all the time ... that would be pretty heavy evidence that the unofficial account has become an official one,” Keating said.
Greitens’ office has said that Briden, the governor's taxpayer-funded press secretary, maintains the “official” Twitter and Facebook accounts and is responsible for “maintaining (the governor’s) official social media content.” But since the new accounts’ creation, the governor’s office has refused to clarify the extent to which Briden maintains Greitens’ “unofficial” social media accounts.
The January 2017 emails suggest that Briden creates content and manages Greitens’ “campaign” accounts to some extent.
The possibility of a state employee operating campaign social media accounts “would raise serious legal concerns,” Compton said.
“If a state employee was in fact operating that account,” she said, “the Sunshine Law may well apply to some or all of the records associated with that account.”
Lawmakers and transparency advocates say having state employees manage Greitens’ campaign social media accounts could be a possible ethics and campaign finance violation.
David Roland, director of litigation with the Freedom Center of Missouri, a libertarian nonprofit that advocates for government transparency, said it’s acceptable for the governor to get input from staff on what he posts, but that a “tipping point” could emerge if state employees were managing Greitens’ account themselves.
“It does trouble me somewhat that (Greitens is) making these very official pronouncements, sitting at his desk in his office, but doing it through his personal Facebook account, and then wanting to categorize that as purely personal,” Roland said. “I think there's a very strong implication that that's actually official statements being made as the governor of the state, not just Eric Greitens.”
Issues are bound to arise when elected officials use social media in their official roles, said Jean Maneke, attorney for the Missouri Press Association.
“Social media wasn't designed for conducting public business,” Maneke said. “Yes, it has some roles that it's used for … but it creates all kinds of questions in terms of retention of public records, destruction of public records. Those are issues that get really tricky when you're dealing with social media.”