Government transparency advocates celebrated a victory in late December, when a Cole County judge ruled the Missouri governor’s office was illegally redacting information from public records.
Two weeks later, Cole County Circuit Court Judge Jon Beetem withdrew his ruling with no explanation.
And on Monday, Beetem issued a new ruling saying that although he believed the governor’s office incorrectly interpreted the state’s Sunshine Law, he concluded there was ultimately no illegal activity.
The reversal came as a shock to those who have followed the case for the more than three years it has been in Beetem’s courtroom. And it sparked concern about the long-term impact the ruling could have on the public’s access to government records.
“I’m very troubled,” said David Roland, director of litigation for the libertarian Freedom Center of Missouri.
Elad Gross, an attorney who is involved in a separate lawsuit against the governor’s office involving open records issues, said he’s “never seen a judge issue a ruling and then reverse that ruling on their own months later.”
The lawsuit began in late 2017, after it was revealed former Gov. Eric Greitens and his staff were using a text-messaging app called Confide.
The app 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.
A lawsuit was filed in December 2017 by Mark Pedroli, founder of the Sunshine and Government Accountability Project. He 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 Greitens and his taxpayer-funded 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.
Greitens resigned in June 2018 and was replaced by Gov. Mike Parson, who continued to fight Pedroli’s lawsuit. Private attorneys hired by the governor’s office have been paid around $400,000 so far as part of this litigation.
In 2019, Beetem dismissed most of Pedroli’s lawsuit pertaining to Confide, ruling that the destruction of records would constitute a violation of the state’s record retention laws, not the Sunshine Law.
The lawsuit could not move forward, Beteem concluded, because private citizens have no right to sue over a violation of the retention law.
But while he dismissed the portions of Pedroli’s lawsuit pertaining to Confide, Beetem left one piece unresolved — 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.
On Dec. 31, Beetem sided with Pedroli, ruling that if the governor’s office retained information documenting cell phone numbers, that information is “without a question a public record.”
On Jan. 11, Beetem notified attorneys that he was withdrawing his judgment and a new order was forthcoming.
On Monday, that new order reversed Beetem’s position and sided with the state.
He still concluded that the exemption cited by the state as justification for refusing to turn over the records to Pedroli doesn’t apply. But he said another exemption would have legally allowed the governor’s phone number to be withheld.
“No violation of the Sunshine Law resulted from the failure to disclose the governor’s personal cell phone number as that is found to be exempt,” Beetem wrote in his decision.
‘Tilt the playing field’
Roland said judges are permitted to reconsider their rulings, so long as they do so while their court still has jurisdiction over the matter.
But “judges are supposed to be impartial,” he said. “They are not supposed to be advocates for any party.”
In this case, Beetem ruled that the position staked out by the attorneys defending the governor’s office was “flat out incorrect,” Roland said.
“Rather than letting that decide the case, however, the judge made himself an advocate for the government’s cause, taking it upon himself to come up with a theory that the government had not advanced and, on that basis, to rule in the government’s favor,” Roland said.
The Sunshine Law is “supposed to tilt the playing field in favor of citizens and against government entities attempting to withhold public records from them,” Roland said. “Instead of looking for reasons to rule in favor of transparency, the court was looking for reasons to rule against it.”
Gross said he is concerned Beetem’s judgement will allow government to “get away with hiding even more public records from the public.”
“It’s unfortunate,” he later added, “that many of our elected officials actively spend public resources avoiding transparency.”
The governor’s office did not respond to a request for comment.
When the decision was originally handed down in his favor in December, Pedroli hailed it as a huge victory for government transparency.
By making it clear that this type of information cannot be redacted from public records, Pedroli said the ruling would save citizens both time and money when they were seeking records from their government.
“The governor’s office was paying a lawyer to sit in her office and redact phone numbers in documents responsive to every Sunshine request they received,” Pedroli said at the time of the initial ruling.
“(That lawyer) testified in a deposition that she spent much of her time doing just this single task. Then, the governor would pass this cost on to you,” he said. “Lawyers shouldn’t be paid to sit and blackout phone numbers everyday. What a waste of time and money. This ruling will save taxpayers of the state hundreds of thousands dollars per year.”
Reached Monday afternoon, Pedroli said he is reviewing the opinion and considering an appeal.