Former Gov. Eric Greitens delivers the annual State of the State address to the Missouri House in January 2018. The same night as the speech, allegations of violent sexual misconduct during a 2015 affair were first reported by KMOV-TV (Tim Bommel/Missouri House Communications).
A panel of state appeals court judges heard arguments last week over whether former Gov. Eric Greitens and his staff used self-destructing text-message apps in 2017 to illegally circumvent Missouri’s transparency laws.
While Greitens was still serving as governor, it was revealed he 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.
Mark Pedroli, a St. Louis County attorney and founder of the Sunshine and Government Accountability Project, filed a lawsuit in December 2017 arguing Greitens conspired to destroy records to ensure they could not be produced pursuant to an open records request.
Greitens resigned in June 2018, but the lawsuit over his use of Confide carried on.
A Cole County judge dismissed the case last year, 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, the judge concluded, because private citizens have no right to sue over a violation of the retention law.
Government transparency advocates feared the judge’s ruling opened a massive loophole in open records laws, and Pedroli filed an appeal.
A panel of judges on Missouri’s Western District Court of Appeals heard arguments in the case last Thursday.
“Today, we are confronted by an extremely serious case with extraordinary issues of public policy, transparency and democracy. In this case, a governor and his staff have admitted to using an ephemeral or burner app to destroy communications.They have also admitted to doing it deliberately,” Pedroli argued last week.
“The question is,” he said, “can a governor or other elected official destroy public records deliberately, with the sole intention of depriving access of citizens to these records under the Sunshine Law?”
Scott Pool, a Jefferson City attorney hired by Greitens’ successor, Gov. Mike Parson, to defend the office, argued the Cole County judge was correct in throwing the case out. Because the Confide app worked as it was intended, Pool said, no records were retained and therefore no records were required to be turned over.
“No one affirmatively did anything to destroy, there was a product used,” Pool told the judges. “The purpose of that product, as shown by expert testimony, was that the product was effective. Once something’s read, nothing’s retained. Nothing’s created. Nothing’s preserved.”
The panel of judges grilled both attorneys for nearly an hour Thursday, delving into what specifically counts as a public record and what remedy exists if a government official destroys those records.
One judge asked whether a Confide message should be considered a retained record if Greitens sent it at 3 a.m. but it sat unread — and undeleted — in a staff member’s inbox for hours.
“As I understand the Confide app, when that staff member woke up at 6:30 and turned on their phone, the governor’s message would be there,” said Judge Mark Pfeiffer. “Was that message not retained on that phone?”
Another judge wondered if the same standards being applied to a Confide message would hold up if this case were about paper records that the governor “deliberately destroys, rips it up, tears it up, burns it, whatever you want to say.”
Pedroli argued there would be no difference.
“If we were to lose today, the governor of Missouri could step out on the front lawn of the governor’s mansion with banker boxes full of documents and burn them,” Pedroli said, later adding: “We would be powerless.”
Pool dismissed Pedroli’s argument as “hyperbole,” saying the record retention law gives the attorney general and local prosecutor the power to pursue charges.
Sen. Josh Hawley, then serving as Missouri attorney general, briefly investigated Greitens’ Confide use in 2018. He ultimately concluded his office didn’t have the tools it needed to pursue the case, such as subpoena power. He would later face criticism over how his office conducted its probe.
The judges also asked about staff in the governor’s office downloading another self-destructing text message app, called Silent Phone, after Greitens had resigned and Parson took over. Staff in the governor’s office began using Silent Phone during 2017 protests in St. Louis and later for overseas travel. Some holdovers from Greitens’ staff downloaded the app after he left office.
Parson has since said he’s banned the use of so-called burner apps like Confide and Silent Phone among his staff.
Over the four years Pedroli has been pursuing his lawsuit, he was able to determine 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.
Greitens is now running for the U.S. Senate.
“Just because the language was written in 1973,” Pedroli said of Missouri’s Sunshine Law, “I don’t think that means modern technology can escape the intent of the legislature of creating this full, comprehensive statutory framework to protect communications by government officials.”
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