How an app on former Gov. Greitens’ phone made a paper trail impossible
A Cole County judge’s decision this week to dismiss claims that former Missouri Gov. Eric Greitens’ use of a self-destructing text message app violated open records laws did more than put the brakes on a year and a half of litigation.
Transparency advocates fear the ruling also exposes a massive legal loophole that could subvert Missouri’s Sunshine Laws and make it harder for the public to access government records.
Circuit Judge Jon Beetem, a Republican re-elected to his third term last year, ruled Monday on a lawsuit challenging Greitens’ use of an app called Confide.
Confide allows someone to send a text message that vanishes without a trace after it is read. It also prevents anyone from saving, forwarding, printing or taking a screenshot of the message.
Because the app automatically deleted any records, Beetem said, they could never officially be retained. Therefore, he concluded that they were not governed by the Sunshine Law.
There is no right for a private citizen to sue under the state’s record retention law, Beetem said, so the lawsuit against the governor’s office that was filed in late 2017 could not move forward.
Beetem’s decision “blows a giant hole in the Sunshine Law, and invites further deliberate, automatic destruction of records by public officials,” said Daxton Stewart, a journalism professor specializing in media law at Texas Christian University.
“Why not do vanishing emails next? Or burn letters immediately after receiving them?” Stewart said. “These are tantamount to a public official’s choice to use apps that automatically destroy messages after they’ve been read. It’s a dream for fans of corruption.”
Adam Marshall, an attorney with the Reporters Committee for Freedom of the Press, said issues raised in Beetem’s decision are popping up around the country and at all levels of government.
“It’s a huge problem, and a real gap in the public records framework,” Marshall said. “It’s a mess, and the effect is potentially devastating for the public.”
Before resigning last June under an avalanche of scandals and felony charges, Greitens’ administration had a well-documented penchant for secrecy.
Private emails from his transition office and fundraising figures for his inauguration were among the records he strove to hide from public view. As was the dark-money nonprofit he established to raise anonymous campaign cash.
In late 2017, The Star revealed Greitens and key members of his government staff had Confide accounts associated with their private cell phones. A lawsuit was filed a few weeks later by a pair of St. Louis attorneys alleging Greitens and his team were using Confide to evade disclosure under the Sunshine Law.
The lawsuit ultimately uncovered evidence that almost every member of the governor’s office had a Confide account, and that the app was being used to communicate both within the governor’s office and with outside allies and lobbyists.
Top staffers in the state treasurer’s office and attorney general’s office were also eventually discovered to have downloaded the app.
Greitens denied any wrongdoing, and his attorneys argued the Confide messages could not be turned over to the public because they were never retained and no longer exist. They asked for the case to be dismissed on these grounds, since a private citizen can’t sue over alleged record retention violations.
Beetem initially balked at that argument, saying it “holds less water than a policy of using disappearing ink for all official documents.”
After Greitens resigned last June, his successor – fellow Republican Gov. Mike Parson – retained the same attorneys and continued to press the same argument
It eventually won Beetem over.
“It’s deeply disturbing,” said Rep. Gina Mitten, a St. Louis County Democrat who sponsored legislation last year aimed at banning public employees from using apps like Confide. “This ruling is permission not to retain records, because there are no real consequences.”
Destroying public records
David Roland, director of litigation for the libertarian nonprofit Missouri Freedom Center, doesn’t agree that Beetem’s ruling will have far-reaching consequences.
Any loophole that exists in the law has essentially always been there, he said.
“Bottom line is, the judge says the records don’t appear to be retained, and if they aren’t retained the Sunshine Law doesn’t apply,” Roland said. “That’s a pretty standard reading of the Sunshine Law.”
He said the hope would be that lawmakers would see this ruling as motivation to “put some teeth in the record retention statutes.”
“It seems silly to have a legal requirement, especially for public officials, that doesn’t carry any kind of penalty for violation,” Roland said.
Mark Pedroli, the attorney who filed the Confide lawsuit against Greitens, has argued that the Sunshine law forbids deletion, destruction, or even the removal of public records without the consent of an office’s custodian of records.
He said when the governor and his staff downloaded Confide, they conspired to violate this provision of the Sunshine Law for the sole purpose of destroying records to ensure they could not be produced pursuant to an open records request.
Pedroli tried to get permission from Beetem to issue subpoenas and take depositions in the hopes of proving Confide was being used to conduct public business.
Beetem blocked those efforts.
If a private citizen can’t use litigation to ensure public records can’t be destroyed, Pedroli said, Attorney General Eric Schmitt needs to step in.
The attorney general’s office is the state agency tasked with enforcing the state’s Sunshine Law.
“Attorney General Schmitt might want to ask himself why he isn’t doing anything to hold public officials responsible for their flamboyant destruction of government records,” Pedroli said.
Chris Nuelle, spokesman for the attorney general’s office, said Schmitt has a policy prohibiting use of any message destroying applications by his staff for public business because he doesn’t believe “using message destroying applications are best practice.”
Nuelle also noted that the attorney general’s office signed an agreement with the governor’s office earlier this year which prohibits both offices from using text message destroying applications for public business.
A footnote in Beetem’s Monday ruling said the court was not addressing Silent Phone, another text messaging app used by the governor’s office and also the Missouri State Highway Patrol. It allows users to set the time of a text’s deletion at anywhere from one minute to 90 days.
The default setting on the app erases texts in three days, after which they are gone forever.
The Missouri State Highway Patrol began using Silent Phone in response to the 2014 protests in Ferguson over the killing of unarmed African-American Michael Brown by a white police officer. It was also used during the 2017 protests in St. Louis following the acquittal of St. Louis police officer Jason Stockley, who was charged with first-degree murder in the shooting death of Anthony Lamar Smith, an African-American suspect.
The Star requested copies of any text messages sent using Silent Phone since 2014, but the highway patrol said it had no records to turn over.
Staff in the governor’s office began using Silent Phone during the 2017 St. Louis protests and later for overseas travel.
Certain members of the governor’s staff continued to have Silent Phone installed on their government-issued phones after Parson took over last summer.
Pedroli raised the issue of Silent Phone to Judge Beetem during a hearing earlier this year, arguing the app would violate a previous court order demanding the governor’s office refrain from using self-destructing text message apps while the litigation was pending.
Stewart, the media law professor from Texas, said the only real solution would be for Missouri lawmakers to ban use of these apps for official business, “to make it clear that it is the policy of the state that the public’ business be done in public, not secretly.”
Mitten said she will once again try to do just that by re-filing legislation banning use of Confide and other self-destructing text message apps by public employees.
The Missouri House overwhelmingly approved a ban last year as part of a larger Sunshine Law bill, but the Senate showed little appetite for the idea.
“Missourians have said repeatedly at the ballot box that they care about transparency,” she said. “It’s inexplicable that the Senate doesn’t agree.”