Suit against governor over message deleting software not strong enough, litigator says

By Karen Kidd | Jan 11, 2018

JEFFERSON CITY — An open government group's lawsuit alleging Gov. Eric Greitens and his staff illegally used an app to destroy public records could find itself quickly dismissed if it isn't amended, a liberty advocacy group's litigation expert said during a recent interview.

The lawsuit last month by Missouri Sunshine Project over the governor's office allegedly using the confidential messenger software Confide isn't very strong, Freedom Center of Missouri Director of Litigation David Roland said during a St. Louis Record email interview. 

"The lawsuit, as it currently stands, only makes one concrete allegation that the law has been violated," Roland said.

"Namely, it asserts that the governor's custodian of records violated the Sunshine Law by failing either to produce certain requested records within three days of the request being made or to provide a sufficiently detailed explanation as to why she had not done so.  There is merit to this argument.  That, however, is the only thing the lawsuit has going for it."

Missouri Gov. Eric Greitens  

Missouri's Sunshine Law requires elected government officials and staff to produce records they retain but Missouri Sunshine Project, in its lawsuit filed in the 19th Judicial Circuit Court of Cole County, doesn't identify any specific records withheld by the governor's records custodian, Roland said. 

"To the extent that anyone knows anything about the governor's and his top aides' use of the Confide app, that use is confined to their private cell phones, not their government-issued cell phones," he said.

"Although text communications made via private cell phones would be public records if - and only if - those texts dealt with public business, there is no allegation that the governor, or his top aides, have actually texted regarding public business using their private phones.  Absent that allegation, preferably supported by some proof to support the allegation, there is no basis for arguing that the governor or his custodian of records have unlawfully withheld public records."

Roland also clarified that he isn't part of the Missouri Sunshine Project, and he has no part of the group's lawsuit.  

"So my comments are those of an outsider, albeit an outside with expertise in Sunshine Law matters," Roland said.

Roland said he also "checked to see if there was any corporation registered in that name with the Missouri Secretary of State and did not find anything."

Freedom Center of Missouri is registered as a 501(c)(3) organization.

Missouri Sunshine Project's lawsuit followed a Dec. 8 story in The Kansas City Star about the use of Confide by the governor's office. Greitens has dismissed that report as "another nothing story that's come from a liberal media outlet that is just desperate for salacious headlines."

Attorney General Josh Hawley's office is investigating the governor's office for its allegedly use of Confide to get around the state's Sunshine and records retention laws, according to a Dec. 20 letter from the attorney general to state Sen. Scott Sifton (D-Affton). Sifton had previously called for the attorney general's office to look into the matter.

The concerns have merit, Roland said. 

"As I understand it, one of the primary features that raises such concerns about the Confide app is not only that it self-destructs messages, but that it prevents a user from taking a screen shot of a message sent through the app and it immediately notifies the sender of the message that the recipient attempted to screen-shot the message," he said.

"Anyone attempting to create a paper trail that would allow them to blow the whistle on illegal messages would immediately out themselves. That truly is a concerning feature from the perspective of transparency advocates."

There are a number of reasons, besides trying to circumvent Freedom of Information Act or Sunshine Law rules, to use apps such as Confide, Roland said. 

"People have all sorts of reasons to desire privacy in their communications," he said.

"Public officials are entitled to a measure of privacy when they are not dealing with public business.  I think it would never be acceptable to use an app like Confide on a government-issued device, nor to use such an app in any way related to public business; but I do not think the law forbids public officials from having such an app on their personal electronic devices or for using it strictly for  private communications.  

"I share the concern of many other transparency advocates that public officials might succumb to the temptation to use the app improperly, but believe the proper solution is to punish violations of the law if and when proven, rather than to ban public officials from using an app like this even when they are not engaging in public business."

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Missouri Attorney General Josh Hawley Missouri Office of the Attorney General

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