Government & Politics

Former Missouri Gov. Greitens’ use of Confide didn’t violate Sunshine Law, judge says

How an app on former Gov. Greitens’ phone made a paper trail impossible

With Confide, messages can’t be saved, so it’s impossible to know whether former Gov. Eric Greitens and his senior staff were using it to conduct state business out of the public eye.
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With Confide, messages can’t be saved, so it’s impossible to know whether former Gov. Eric Greitens and his senior staff were using it to conduct state business out of the public eye.

A Cole County judge ruled Monday that former Gov. Eric Greitens didn’t violate Missouri’s Sunshine Law when he and his government staff used a self-destructing text message app called Confide.

Circuit Court Judge Jon Beetem said because the text messages were automatically deleted, it meant they were never officially retained—and therefore were not covered by the Sunshine Law.

The Star reported in late 2017 that Greitens and key members of his taxpayer-funded staff were using the app.

A pair of attorneys sued the governor’s office a few weeks after The Star’s report, arguing that Confide was being used by public employees to subvert Missouri’s open records laws.

During the year and a half that the lawsuit has been pending, it has been revealed that nearly every employee of Greitens’ government staff had Confide downloaded on their personal cell phones and that the app was used to communicate within the office and with allies outside of government.

Attorneys representing the state – first under Greitens and now under his replacement, Gov. Mike Parson – have argued that the lawsuit must be dismissed because by automatically deleting text messages Confide ensures they could never be properly retained.

If the messages aren’t retained, the attorneys argued, they can’t be produced as part of an open records request.

Before Greitens resigned last June, Beetem dismissed that line of thinking. He said the governor’s office’s argument “holds less water than a policy of using disappearing ink for all official documents.”

On Monday he reversed course saying that once it was determined that the records in question no longer existed either on phones or a server, the issue was no longer about the Sunshine Law.

It was, Beetem wrote, about violation of the records retention law. Private citizens cannot sue under the that law, and thus, the legal action cannot move forward.

He said use of Confide and other self-destructing text message apps are “not much different than a digital phone call which exists only for the moment.”

The governor’s office couldn’t be immediately reached for comment.

Mark Pedroli, one of the attorneys who sued the governor’s office over Confide use, said the ruling creates a giant loophole in the Missouri laws designed to make the inner workings of government open to public scrutiny.

“Government officials cannot be allowed to communicate about public business on secret burner apps so they can evade Missouri’s Sunshine laws,” Pedroli said. “Their intentional conduct is nothing short of a conspiracy to violate Missouri’s statutes.”

Pedroli said the legislature needs to close the loophole, and he urged the state office tasked with enforcing Missouri open records laws—under Attorney General Eric Schmitt—to “hold public officials responsible for their flamboyant destruction of government records.”

The Missouri House approved legislation this year that would have banned the use of self-destructing text message apps, but it failed to get much traction in the Missouri Senate.

Only one piece of Pedroli’s lawsuit— an allegation that the governor’s office violated the Sunshine Law by refusing to turn over phone records that show the mobile phone numbers used by Greitens—was not dismissed.

“I’m pleased the judge upheld part of our case for trial,” Pedroli said. “This fight isn’t over.”

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Jason Hancock is The Star’s lead political reporter, providing coverage of government and politics on both sides of the state line. A three-time National Headliner Award winner, he has written about politics for more than a decade for news organizations across the Midwest.