Though the use of self-destructing text-messaging apps has the practical effect of “side-stepping the reach of Missouri’s Sunshine Law,” their use by then-Gov. Eric Greitens and his staff was not illegal, a panel of appeals court judges ruled Tuesday.
While Greitens was still serving as governor, he and his staff used a text-messaging app called Confide. The app allows someone to send a text message that vanishes without a trace after it is read and prevents anyone from saving, forwarding, printing or taking a screenshot of the message.
Mark Pedroli, a lawyer in St. Louis County 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.
But on Tuesday, a panel of judges on Missouri’s Western District Court of Appeals unanimously agreed with a lower court ruling that because the records were destroyed they were never retained by the governor’s office.
And thus, failing to produce them did not constitute a violation of Missouri’s open records law.
“The Sunshine Law only requires that governmental agencies provide access to records then in existence, and in the agencies’ possession or under their control,” the judges concluded.
In a footnote to the decision, the judges agreed with Pedroli’s argument that use of apps such as Confide could undermine the principle of transparency that the Sunshine Law is designed to enforce.
“It may be time to ‘update’ Missouri’s Sunshine Law that was originally enacted in 1973 — well before cellular phone technology existed and, likewise, well before ephemeral messaging applications existed,” the judges wrote. “But, it is not within the power of the judicial branch of government to ‘create’ statutory law; that power is vested with the legislative branch of government.”
The court added: “Nothing in this opinion should be interpreted to suggest that we condone the use of ephemeral messaging applications by public officials.”
Pedroli vowed to appeal the decision to the Missouri Supreme Court.
“While we appreciate the court’s time and great interest in government transparency issues, we will also seek to have the Supreme Court weigh in on these issues of great importance to the state,” he said in a statement.
Last week, Pedroli said in an interview with The Independent if the courts side with the governor’s office, they will be giving permission for government agencies to destroy records to avoid disclosure. That, he said, would create a massive hole in the Sunshine Law.
He added that he had little hope that lawmakers would address the issue and fix the problem.
“Former Gov. Greitens was literally shredding and deleting records, and they didn’t step in and fix that,” Pedroli said last week. “So I don’t have a lot of hope that they’re gonna step in.”
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 resigned in June 2018 to settle a felony charge and avoid impeachment. He is now running for the U.S. Senate.
Because of the appeals court decision, Tuesday was a “great day for corrupt officials,” said Elad Gross, an attorney and transparency advocate.
Daxton Stewart, a journalism professor specializing in media law at Texas Christian University, tweeted Tuesday that the ruling was “hugely problematic and creates perverse incentives for government officials to destroy documents as they go to prevent oversight.”
This article by Jason Hancock is published by permission of The Missouri Independent.