If text messages sent using Confide are automatically deleted, then the governor’s office can’t retain them and thus isn’t violating Missouri’s open records law by failing to make them public, attorneys for the governor argued Tuesday in Cole County Circuit Court.
Two St. Louis attorneys sued former Gov. Eric Greitens in December, alleging that the governor’s office used Confide to evade the state’s open records laws. Even though Greitens resigned June 1, the lawsuit against the governor’s office continues.
Confide allows someone to send a text message that automatically erases after it is read. It also prevents anyone from saving, forwarding, printing or taking a screenshot of the text.
Mark Pedroli, one of the attorneys who filed the lawsuit, had hoped to interview former Greitens staff and appointees who used Confide to determine whether the app was used to discuss public business.
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Barbara Smith, an attorney with the Bryan Cave law firm hired to represent the governors’ office in the lawsuit, argued during a hearing Tuesday that if the governor’s office never possessed the texts, the Sunshine Law doesn’t apply.
“The Sunshine Law is designed to allow access to documents that exist,” Smith said.
Pedroli argued that knowingly destroying public records in and of itself violates the state’s open records law.
“When you send a message over Confide, you’re destroying the original message,” Pedroli said. “The defendants are saying, ‘If we destroy it, that’s it. That’s the end of the road.’ ”
That would set a dangerous precedent, Pedroli said.
“Government officials will be motivated to use Confide,” he said. “They’ll be motivated to destroy records, because there are no consequences.”
Pedroli had hoped that if he couldn’t find the texts, either through a subpoena to Confide or a forensic analysis of the phones of Greitens and his former staff, then he could prove public business was conducted by interviewing those who used Confide under oath.
Cole County Circuit Judge Jon Beetem ruled Tuesday that Pedroli cannot move forward with any interviews of current or former Greitens staff. Instead, he must issue a subpoena to Confide to see if it can produce copies of the text messages sent using the app by state employees in the governor’s office.
Beetem also said he’d entertain the idea of a forensic examination of the phones of former Greitens staff if he can be convinced it will lead to proving the texts still exist. There also must be some clarity about who would pay for the examination, Beetem said.
In court on Tuesday, Beetem seemed sympathetic to the arguments of the governor’s attorney.
“Under the Sunshine Law,” he said, “they only have to produce the records they’ve got.”
The Star first reported late last year that Greitens and his senior staff in the governor’s office had Confide accounts associated with their personal cell phones, a revelation that set off alarms for transparency advocates who fear the app could be used to avoid compliance with the Sunshine Law.
Last month, the governor’s office disclosed that 16 current and four former staffers had Confide accounts during the governor’s 17-month tenure, including Greitens himself. Five of those staffers admitted to the attorney general’s office in March that they used Confide for public business, but not in any way that violates the open records laws.
In May, Greitens admitted he also used Confide to communicate with his taxpayer-funded staff.