A Missouri judge just gave the OK for more secrecy, corruption in state government

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.

The stampeding sounds you heard echoing across Missouri this week were state officials and employees rushing to download text-destroying apps that will let them do the public’s business in private.

And that should worry all Missourians.

Transparency in state government suffered a crippling blow when Cole County Circuit Judge Jon Beetem ruled that former Gov. Eric Greitens’ administration did not violate the state’s open records law with the use of the text-destroying app Confide.

In 2017, a Star investigation revealed that Greitens and his staff had been using the self-destructing text message app. A lawsuit challenged the notoriously secretive governor’s use of Confide, which leaves behind no trace of a message once it’s been read.

But incredibly, Beetem ruled that because the app used by Greitens and his staff automatically deleted their records, the messages could not be officially retained. Failing to turn those records over to the public somehow did not violate the Sunshine Law, according to the judge.

If destroying records immediately is the key to circumventing open records laws, why not just shred all public documents before they can be officially retained?

Beetem’s logic is mind-boggling. Using an app that exists to destroy messages upon receipt is a clear attempt to subvert the state’s open records laws, which forbid deletion, destruction or even the removal of public records without the consent of an office’s custodian of records.

The decision impinges on the rights of the very people the Sunshine Law was meant to protect: everyday Missourians.

“It’s unfortunate,” said attorney Mark Pedroli, who sued the Greitens administration for violating the Sunshine Law. “The governor has to keep things permanently and send them to the archives. Now they are gone.”

Nearly all of Greitens’ government staff had Confide on their personal cellphones, and they used the app to communicate with each other and with outside allies and lobbyists. Senior-level staffers in the state treasurer’s office and attorney general’s office also downloaded the app.

Beetem ruled that only the attorney general’s office or a county prosecutor can pursue legal remedies for open record violations — not private citizens such as Pedroli. So, taxpayers can’t legally hold elected officials responsible for destroying public records?

The decision is disappointing, said Mark Maassen, executive director of the Missouri Press Association.

“Government entities need to realize they need to be more transparent,” he said.

This decision sends the message that there are no consequences for intentionally and repeatedly violating the Sunshine Law. And Beetem’s ruling gives elected officials the tacit go-ahead to cover their tracks and keep taxpayers in the dark. Elected officials and government employees who don’t want to be inconvenienced by the prying eyes of the public need only download an app that allows them to sidestep the law with one swipe on their iPhone.

If the ruling stands, it exposes a mile-wide loophole in the state’s Sunshine Law, clearing the way for secrecy and corruption in government. The decision puts the onus on Missouri lawmakers to outlaw the use of Confide and other similar apps by public employees.

During this year’s legislative session, the Missouri House overwhelmingly approved a measure that would have banned the use of apps such as Confide to conduct public business. But the Senate balked.

“The legislature needs to step in to say records produced at the expense of taxpayers should be available to the public,” said Kathy Kiely, the Lee Hills Chair in Free Press Studies at the University of Missouri’s School of Journalism

The public’s right to know is at stake in Missouri. It should go without saying that public records should actually be available to the public. And the decision green-lighting the destruction of government records before they can be retained sets a dangerous precedent in our state.