Two staffers for former Gov. Eric Greitens appear to have used the Confide app last summer to share talking points on one of the governor’s policy priorities.
Screenshots of a text message conversation between Brad Green and Jeff Earl — who at the time were both serving as deputy legislative directors for Greitens — were turned over by the Governor’s Office last week to attorneys who are suing the Governor’s Office over its use of Confide.
The lawsuit accuses Greitens and his staff of using Confide — an app that deletes a text message after it’s been read — to circumvent the state’s open records law.
Greitens resigned June 1, but the lawsuit against the Governor’s Office is ongoing.
Plaintiffs in the lawsuit argue the screenshots prove the governor's staff was using the self-destructing text message app to discuss public business.
The text conversation begins with Green telling Earl that he “can’t see your edits very well on Confide.”
Earl then sends him a photo of a document entitled “PDMP – Talking Points.”
Green responds, “KK thanks.”
The brief back-and-forth appears to be an acknowledgment that the two staffers were using Confide to share talking points they'd eventually use to promote Greitens’ proposed prescription drug monitoring program.
"The Office of Governor has always denied using Confide to conduct public business, and especially substantive public business, discussions of public policy or the like," said Mark Pedroli, one of the attorneys who sued the Governor's Office. "These screenshots demonstrate the opposite, that the Office of Governor was using Confide to conduct substantial public business."
A spokesman for the Governor's Office did not immediately respond to a request for comment Tuesday afternoon. Neither did the private attorneys defending the Governor's Office in the lawsuit.
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 cellphones, a revelation that set off alarms for transparency advocates who fear the app could be used to avoid compliance with the Sunshine Law.
Following The Star’s report, Attorney General Josh Hawley launched an investigation into Greitens’ use of Confide, ultimately concluding that there was no evidence of wrongdoing in part because Confide ensured there was no evidence.
Hawley was criticized for the inquiry, which consisted of interviews with eight Greitens staffers who said they had Confide downloaded on their cellphones. Greitens was not questioned.
Of those interviewed, five told the attorney general’s office they used Confide to discuss their government jobs but said the communications consisted of “entirely of nonsubstantive matters such as logistics and scheduling.”
Neither Green nor Earl was among the eight staff members who were interviewed by the attorney general’s office.
It wasn't until late last month, as part of Pedroli's lawsuit, that the Governor’s Office acknowledged that in fact 16 current and four former staffers had Confide accounts during the governor's 17-month tenure, including Greitens himself.
Greitens also admitted he used Confide to communicate with his taxpayer-funded staff, but only about scheduling.
The attorney general's office has previously accused the Governor's Office of withholding evidence during its Confide investigation. Hawley has also cited a lack of subpoena power in Sunshine Law cases as a major detriment to his ability to look into the matter.
When presented with the screenshots Tuesday by The Star, Hawley's spokeswoman, Mary Compton, reiterated the call for lawmakers to give the attorney general subpoena power.
“This demonstrates again why the attorney general has repeatedly called for subpoena power to enforce the Sunshine Law," Compton said. "It is time the (attorney general's office) had the power to compel the production of documents and evidence.”
Pedroli said he received the screenshots as part of a batch of records delivered to him by the Governor’s Office on Friday. By Tuesday, however, Cole County Circuit Judge Jon Beetem sided with the governor’s attorney and ordered a halt to the discovery process and blocked Pedroli from interviewing current or former Greitens staff.
Instead, Pedroli 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.
“Just as we're making great strides in fact-finding," Pedroli said, "the new governor, like the old Governor, asks the court to handcuff our investigation.”
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.
The judge also seemed to be sympathetic to the argument put forth by attorneys representing the Governor's Office during a Tuesday hearing that text messages sent using Confide that were automatically deleted can't retained by the Governor's Office.
And thus, the Governor's Office didn't violate Missouri’s open records law by failing to make them public.
“The Sunshine Law is designed to allow access to documents that exist,” said Barbara Smith, an attorney with the Bryan Cave law firm hired to represent the Governor's Office in the lawsuit.
Pedroli argued that knowingly destroying public records in and of itself violates the state’s open records law. Failure to enforce, he said, would set a dangerous precedent.
“Government officials will be motivated to use Confide,” he said. “They’ll be motivated to destroy records, because there are no consequences.”