Appeal filed in lawsuit over Eric Greitens’ use of self-destructing text message app

A lawsuit alleging former Gov. Eric Greitens illegally destroyed public records during his time in office by using a self-destructing text messaging app is on its way to Missouri’s Western District Court of Appeals. 

The appeal, filed last week by Mark Pedroli of the Sunshine and Government Accountability Project, is the latest twist in a lawsuit that’s been ongoing for more than three years. 

And it comes just as Greitens has re-emerged on the public stage, officially jumping into the Republican primary last month for the U.S. Senate seat being vacated by retiring Sen. Roy Blunt. 

Pedroli originally filed his lawsuit in December 2017 after it was revealed 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.

Over the course of Pedroli’s lawsuit, he determined that nearly every member of the former governor’s taxpayer-funded staff 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.

Pedroli argued the Sunshine Law forbids deletion, destruction or even the removal of public records without the consent of an office’s custodian of records, and that by using Confide, Greitens and his staff were conspiring to ensure certain records could not be produced pursuant to an open records request.

In 2019, Cole County Circuit Court Judge Jon Beetem dismissed most of the lawsuit, ruling that the destruction of records would constitute a violation of the state’s record retention laws, not the Sunshine Law. 

Beetem concluded that private citizens have no right to sue over a violation of the retention law — a position transparency advocates said could create a loophole in Missouri’s Sunshine Law.

One count in Pedroli’s lawsuit remained after Beetem’s 2019 ruling. Pedroli argued the governor’s office illegally withheld information from public records regarding mobile phone numbers used by Greitens while he was in office. 

Earlier this year, after initially ruling in Pedroli’s favor, Beetem dismissed that final claim.

Pedroli filed an appeal last week, asking the court to throw out Beetem’s ruling that Missouri residents have no right to sue if there is a violation of the state’s record retention law. He’s also asking the court to decide whether a phone number, when retained by a government entity, is a public record. 

The appeal also includes questions about Beetem reversing himself on the issue of whether the governor’s office illegally redacted information. 

On Dec. 31, Beetem issued a ruling agreeing with Pedroli that if the governor’s office retained information documenting cell phone numbers, that information is “without a question a public record.”

Two months later, Beetem reversed his ruling. He still didn’t believe the attorneys representing the governor’s office had made a compelling argument. But he cited a different exemption in the Sunshine Law that he said allowed for phone numbers to be withheld. 

“Can the trial court rule in favor of the government under the trial court’s own legal theory, which defendant never asserted and plaintiff never litigated or contested over three years of litigation?” Pedroli wrote in the appeal, later adding: “Lastly, is the trial court’s theory, that a record containing Gov. Greitens’ mobile phone number, that was used to communicate with other government officials, a closed record under Chapter 610.021(13) notwithstanding the form, location, or nature of the record?”

Greitens resigned in June 2018, but the governor’s office continued fighting the lawsuit under his replacement, Gov. Mike Parson. Private attorneys hired by the governor’s office have been paid around $400,000 so far as part of this litigation.