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Disappearing texts could effectively erase Missouri's public record laws, lawyer says

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Carolina Hidalgo
/
St. Louis Public Radio
A lawsuit soon to be heard in the Missouri Court of Appeals stems from the use of the app Confide by senior staffers to then-Gov. Eric Greitens.

In Washington, the House committee examining what really happened at the Capitol on Jan. 6, 2021, is examining the possibility that then-President Donald Trump used a “burner phone” to hide his contacts from the public view.

In Missouri, hidden telecommunications are no hypothetical — but whether public officials can conceal their conversations with impunity remains a question for the Court of Appeals.

On one side is the Missouri governor’s office. Eric Greitens was governor in 2017 (and not yet embroiled in the scandal that would bring his resignation) when the Kansas City Star revealed he and his senior staff were using the disappearing text app Confide. A citizen, Ben Sansone, quickly filed a Sunshine Law request, seeking to find out who in Greitens’ office was using the app — and whether the messages could be seen like any other record of governance. When the governor’s office failed to respond in a timely way, attorney Mark Pedroli filed suit.

In litigation, Pedroli learned that no fewer than 27 Greitens’ staffers were using Confide — and he says he’s established they were using it for official government business. But he still ran into trouble. Cole County Judge Jon Beetem dismissed Pedroli’s suit, saying in essence that Missouri’s Sunshine Law only applies to government records that have been retained, while disappearing text messages cease to exist soon after arrival. Private citizens, Beetem wrote, had no right to sue over them.

Listen to Mark Pedroli on St. Louis on the Air

On May 12, Pedroli will argue before the Missouri Court of Appeals that Beetem got it wrong. He says the consequences are huge: If the lower court’s dismissal stands, government agencies in Missouri will have every incentive to not only shield their communications via apps like Confide, but also to destroy records with impunity. “Theoretically, yes, people could destroy the records, and there would be no recourse under the Sunshine Law,” Pedroli said on Tuesday’s St. Louis on the Air.

After all, Beetem suggested that Confide messages are not public records because they are not retained by government bodies. Under that logic, he writes, “a record is a ‘public record’ if an official decides to keep it, but not a ‘public record’ if the official decides to destroy it.”

The only recourse under Beetem’s standard, Pedroli said, would be if the state’s attorney general chose to bring a criminal investigation using a different state law.

That has not happened in Missouri. While then-Attorney General Josh Hawley initially launched a probe into Greitens staffers’ use of Confide, his staff members allotted just 15 minutes for each staff interview and decided not to interview Greitens at all — because they thought Greitens “didn’t want to” talk. They suggested only a handful of Greitens staffers were using the app (something Pedroli later disproved) and soon found no violation of state law.

Only later did the public learn that Hawley’s own chief of staff, as well as a top deputy involved in the probe, were also using Confide.

After Hawley became a senator, the state treasurer, Eric Schmitt, became attorney general. Schmitt could have chosen to pick up the matter. But, Pedroli said, he had a conflict, too: “His former chief of staff at the Treasury also was on Confide at around the same time as Governor Greitens.”

Said Pedroli: “Everybody had a conflict of interest. But nobody talked about it. Schmitt should have said, ‘Look, somebody from my office used it. We can't pursue this. We're going to appoint an independent prosecutor. We're going to have somebody else look into this.’ Hawley could have done the same thing. No one did that.”

Ever since the Star first revealed the use of burner apps like Confide, the state legislature has talked about amending the Sunshine Law to make clear they are prohibited for government business.

“You always hear the legislators are going to do this, they're going to do that. But it just doesn't happen,” Pedroli said. “So we don't feel confident that we're going to get anything out of the legislature that really addresses this. … We need the Court of Appeals. And I think that's where the action is right now.”

St. Louis on the Air” brings you the stories of St. Louis and the people who live, work and create in our region. The show is hosted by Sarah Fenske and produced by Emily Woodbury, Kayla Drake, Danny Wicentowski and Alex Heuer. Jane Mather-Glass is our production assistant. The audio engineer is Aaron Doerr.

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Sarah Fenske joined St. Louis Public Radio as host of St. Louis on the Air in July 2019. Before that, she spent twenty years in newspapers, working as a reporter, columnist and editor in Cleveland, Houston, Phoenix, Los Angeles and St. Louis.

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